December 1, 2006
Re: S-1087 (Vitale/Allen) Permits adopted persons and certain others access to adopted person's original birth certificate and other related information; appropriates $90,000
Dear Members of the Senate:
The New Jersey State Bar Association respectfully urges you to vote "no" on S-1087 (Vitale/Allen) which permits adopted persons and certain others access to adopted person's original birth certificate and other related information and appropriates $90,000.
This legislation was reviewed by the Association's Board of Trustees, Legislative Committee, Family Law Section and Women in the Profession Section.
This bill amends the law to allow adult adopted persons access to their birth certificate and other related information and establishes a mutual consent voluntary adoption registry.
NJSBA sections and committees have reviewed this and prior versions of the bill over many years. Historically, we have supported mutual consent adoption registries and supported adult adoptees access to the original birth certificate, if made prospective in its application. Given the provisions in the current bill, the NJ SBA has strong objections listed below.
THE NJSBA'S OBJECTIONS
A) THE BILL BURDENS THE BIRTH MOTHER'S REASONABLE EXPECTATION PRIVACY.
New Jersey courts have long interpreted the current adoption statutes as providing birth parents with an expectation of privacy. Our courts have held that the purpose of New Jersey's adoption statutes is, among other things, to promote policies and procedures socially necessary and desirable for the protection not only of the child placed for adoption and his or her birth parents, but also the adopting parents. This bill would place those birth parents at an extreme disadvantage given the expectation of privacy which has been judicially noted and relied on by these persons and others.
A birth parent who places a child up for adoption and does not submit a written, notarized request for nondisclosure forfeits her privacy rights, and her child will have access to her name upon turning eighteen. It is highly unlikely that every woman who gave up a child in New Jersey within the last eighteen years will be properly informed of the new procedures within twelve months. Thi s is especially a problem among rural, uneducated, or non-English speaking communities, despite a public awareness campaign. It is also unrealistic that a birth parent who lives outside the State of New Jersey will comply with our State laws in order to avoid such an invasion of privacy. Furthermore, it is simply unfair to force a woman who was once assured that she would remain anonymous to complete paperwork and relive the painful decision she made years earlier.
Furthermore, the birth mother must fill out a medical history form within 60 days despite her request for nondisclosure. She will then be forced to update that form every ten years until she turns forty and every five years thereafter. If she fails to complete the form in a timely manner, she runs the risk of nullifying her original request for nondisclosure.
It is unsettling that the state will further invade her privacy by sending her a certified letter at least 45 days prior to reversing her anonymity. During those 45 days, she may be ill, away on an extended vacation, overseas or temporarily living at a different address. Members of her immediate family, including her children, can easily open the letter and learn something about her past that she had no intention of revealing to them. This bill expects a birth parent to make her self available to tend to this tedious procedure at specific times during specific years for the rest of her life.
B) IT IS ALMOST IMPOSSIBLE FOR EVERY PERSON WHOM THIS BILL APPLIES TO, PARTICULARLY THOSE WHO HAVE ALREADY PLACED THEIR BABIES UP FOR ADOPTION, TO LEARN ABOUT THE DETAILS OF SUCH A NEW LAW IN TIME TO PROTECT THEIR PRIVACY.
This bill appropriates $90,000 to the Department of Health and Senior Services to contract with television and radio media outlets to create national public service messages and encourage participation in this initiative. The public service messages would inform the public of the detailed procedure a birth parent must follow in order to request nondisclosure, including the strict time limit. It is unrealistic to expect that these steps will sufficiently inform every birth parent in New Jersey who has ever given a child up for adoption of their rights. Further, given New Jersey 's expensive and costly media market sandwiched between New York and Philadelphia , the $90,000 approved for media outreach is insufficient at best.
A similar example of a state's failure to inform birth parents of their rights before it is too late to exercise them are the Putative Father Registries that exist in many other states, though not in New Jersey. After a man who has conceived a child with a woman registers with his state's Putative Father Registry, the court will make sure that he is notified of any pending adoptions involving that child. He then has the right to appear before the court to contest the adoption. The problem is that the father is required to submit the form within a certain period of time after the child's birth before he loses his right to do so. (Ex: Illinois gives only 30 days) Predictably, the registries are often unsuccessful and often complicate adoptions painfully late in the process. These complications arise because far too many expectant fathers do not know about the availability and strict requirements of the registry regardless of the "public service" announcements designed to inform them.
New Jerseyans and in particular birth parents should not have to take an affirmative step to maintain their privacy rights, especially given that that most will be unaware that such rights are in jeopardy. Instead, one should take an affirmative step to waive one's cherished right of personal privacy.
C) THE BILL DISREGARDS THE PSYCHOLOGY OF ADOPTION.
One of the fundamental benefits of adoption is that a birth mother can make a painful sacrifice for her biological child's best interest and then move on with her life. Requiring a woman to continually submit information in the family history form will not allow her to enjoy a feeling of closure after her traumatic experience. It forces her to relive it continuously throughout the rest of her life.
Furthermore, many children adopted in the past were adopted with an understanding between birth parents and adoptive parents that unless both the child (after age 18) and the birth parent agreed, there would be no revealing of the birth parent's identity. For example, a child adopted through Catholic Charities is placed with the adoptive parents with specific reliance by the birth parents that the birth parents' identity will not be disclosed without the express consent and desire of the birth parent. Often, it is the security of this knowledge that would be the reason a birth parent and/or an adoptive parent chooses an agency. To disregard that sacred reasoning is a breach that reflects a total disregard of the complexity of adoption.
D) THE BILL CONFLICTS WITH THE SAFE HAVEN INFANT PROTECTION ACT.
Under the New Jersey Safe Haven Infant Protection Act, a person may safely and anonymously surrender custody of an unwanted infant who is under thirty (30) days old at any time without notice, no questions asked. As long as the baby has not been abused and is brought to a hospital emergency room or police station in New Jersey, the person need not fear arrest or prosecution. Furthermore, if birth parents cannot bring the baby to one of those locations themselves, they may send the baby with someone else such as a relative, friend, social worker, etc. If the mother brings in the baby, she is offered free medical treatment and social services. If the person surrendering the baby is willing to share any information about the baby's health, family medical history, race, place of birth, or date of birth in order to assist in the child's future care or curiosity, hospital personnel or police will record it. The child is then placed in a pre-adoptive home until he/she is formally adopted.
The purpose of the Safe Haven Act is to protect unwanted infants from being abused, abandoned or killed. This law has had a tremendous impact on avoiding the much publicized tragedies involving babies left in garbage cans, dumpsters and toilets. These babies were often born to mothers who hid their pregnancies, terrified of the consequences they may face if their families found out. Out of desperation, they abandon or kill the babies immediately after they are born.
The bill could potentially encourage some birth parents to surrender their children under the Safe Haven law to preserve their privacy, rather than give their children up for adoption and subject themselves to the requirements of the bill.
E) ALTHOUGH THE BILL CONTINUOUSLY REFERS TO BIRTH "PARENTS", ITS REQUIREMENTS CLEARLY IMPACT BIRTH MOTHERS MUCH MORE THAN BIRTH FATHERS, AND PARTICULARLY AFRICAN-AMERICAN SINGLE MOTHERS
Often a woman who places her baby for adoption does so because she is single and the biological father is out of the picture. The father may have broken off the relationship after learning about the pregnancy, if there was ever a relationship to start with. She may not know the father. She may have even been raped. Children born under these circumstances often have birth certificates that do not reveal a father's name. This bill will further the disparity between how men and women address the consequences of an unplanned pregnancy.
According to recent U.S. Census Bureau reports, single parents accounted for 65% of all African American family groups with children, compared with 35% for among Hispanics and 25% among whites. While the percentage of African-American single parent families is attributable to complex social reasons, this legislation could disproportionately impact single black mothers to their detriment.
F) THE BILL MAY ENCOURAGE WOMEN TO KEEP BABIES THAT MAY BE BEST CARED FOR BY AN ADOPTIVE FAMILY.
Women who place their babies up for adoption look forward to moving on with their lives and putting the experience behind them. Many come to peace with the decision they made and want to begin a new life. They struggle with the process of severing the bond that has been created with the child during pregnancy. Telling a women who is considering adoption that she will never be able to completely detach herself from that child and live th e rest of her life anonymously unless she constantly submits to an invasive and tedious process may lead to her foregoing adoption altogether.
G) THE OBLIGATION TO REPORT AN ADDRESS CHANGE TO THE STATE REGISTRAR'S OFFICE IS UNREASONABLE.
Failure to complete and return a family history form to the New Jersey State Registrar nullifies a birth parent's request for non-disclosure. The New Jersey State Registrar requires a current address in order to send the family history form to birth parents and provide them with adequate warning that their request for nondisclosure could be nullified if the family history form is not returned in a timely manner. The bill is punitive in this respect. It is cumbersome to require a person who has given a child up for adoption to continuously apprise New Jersey 's State Registrar of their address every time they move, especially if they leave the state, to preserve the request for non-disclosure.
H) SIMILAR LEGISLATION ALREADY HAS BEEN VETOED IN ANOTHER STATE
On June 2, 2006 , Governor M. Jodi Rell of Connecticut vetoed Senate Bill 4, legislation that would have allowed adult adoptees to obtain information about their birth parents without mutual consent. Governor Rell vetoed the bill out of concern that opening adoption records without the approval of biological parents would have damaging unintended consequences. Governor Rell's reasons for vetoing the bill, many of which echo our concerns with S-1087, include:
The bill will have a negative effect on women in the process of adoption or are currently pregnant and have already decided to give up a child for adoption. Confidentiality was likely a key factor in their incredibly difficult decision-making process and such confidentiality would likely be lost under the provisions of the bill.
The important principle of mutual consent before release of specific parental identification information would be eliminated;
Some women may be deterred from choosing a conventional adoption process and instead opt to avail themselves of the state's Safe Havens Act, which allows birth mothers to decline to provide any contact or medical history information when they hand over their newborn in a hospital emergency room, thus resulting in less, not more, birth information being available to adoptees when they seek it in their adult years.
The bill has an overall chilling effect on adoptions in that it will likely discourage people, both those giving children up for adoption and those seeking to adopt children, from pursuing the adoption process in light of the loss of a confidentiality shield.
Governor Rell stressed that the principle of privacy is a basic tenet of personal freedom and that the bill violates that principle.
Privacy is also the primary concern of the NJSB A with regard to this S-1087. The legislation substantially burdens the privacy of birth parents who give a child up for adoption. This runs contrary to the current trend in the Legislature to increase privacy protections. There are numerous examples of legislation introduced and enacted in recent years to protect individual privacy and the confidentiality of private information.&nb sp; These include:
· A-2768 (Cohen) Expands identity theft statues to include selling, manufacturing, possessing, or exhibiting false birth certificates. Signed into law as P.L.2005, c.224
· A-4001 (Watson Coleman) The "Identity Theft Prevention Act." Signed into laws as P.L.2005, c.226
· S-376/A-1373 (Sacco/Quigley) Creates the "Biometric Identifier Privacy Act."
· S-547/A-2518 (Buono/Cohen) "New Jersey Financial Information Privacy Act."
· S-1625/A-3473 (Buono/Vainieri Huttle) "Adolescents' Online Privacy Protection Act."
· A-131 (Merkt) Classifies victim impact statements as confidential communications.
· A-139 (Vandervalk) Creates a civil rape shield law.
· A-777 (Caraballo) Provides for expungement of certain records of victims of identity theft.
· A-1080 (Greenstein) Protects privacy of an individual's financial information by prohibiting disclosure without the prior informed, affirmative consent of the consumer.
· A-2105 (Beck) Establishes NJ Task Force on Records Privacy.
· A-2723 (Greenstein) Provides of development of public employee identification number, limits use of Social Security number.
· A-2938 (Greenwald) Prohibits the use or possession of cellular picture phones to invade another person's privacy and prohibits camera or picture cell phones in schools.
THE NJSB A'S SUGGESTED AMENDMENTS
To address the privacy issues raised by the bill and other above mentioned objections, the NJ SBA has drafted suggested amendments to S-1087. This bill draft reflects the consensus of the New Jersey State Bar Association, the American Civil Liberties Union, the New Jersey Catholic Conference, the New Jersey Right to Life Committee and the National Council for Adoption. This bill draft strikes a critical balance of providing adopted persons with liberal access to their family medical, cultural, and social h istory, while providing birth parents with the opportunity to maintain their privacy. The amendments are summarized as follows:
· For adoptions occurring prior to the enactment of the bill, a birth parent would have to file a request for non-disclosure and provide a family history form which sets forth information regarding family medical, cultural, and social history information. Birth parents would have 18 months, following the date of enactment, to file a request for non-disclosure. In the event that the request for non-disclosure and the family history form are not filed with the State Registrar, the adopted person would be permitted access to his or her original birth certificate. However, if the documents are appropriately filed with the State Registrar, the adopted person would have access to the family history form only.
· For adoptions occurring after the enactment of the bill, a similar scenario applies. The birth parents would have an opportunity to file a contact preference form. A family history form would also have to be filed in all cases where a preference form is filed. In the event these documents are filed and an adopted person seeks to obtain a copy of his or her origin al birth certificate, the application would be denied, except that the family history form would be provided to the adopted person. The current version of the bill permits an adopted person to obtain his or her original birth certificate regardless of the contact preference of a birth parent.
· Further, the bill permits a legal challenge to the denial of a request for an original birth certificate. In that case, a substantial burden would be placed on the applicant.
· Sections five and eight of S-1087 are deleted as these provisions may conflict with the attorney-client privilege and the Rules of Professional Conduct governing attorneys and the practice of law and they may place an undue burden on the court's administrative offices. Also, there is concern that if too many avenues are open with respect to access to information, it is more likely that information which should not be disclosed may inadvertently be produced.
This proposed bill draft was submitted to Senator Joseph Vitale, the prime sponsor of the bill and presented to the members of the Senate Health Committee. The Committee rejected the proposal. We acknowledge Senator Vitale's willingness to work with the NJSBA on this and many other issues. We also recognize that the current bill represents an attempt to balance many competing interests. However, we respectfully regret that we cannot support the bill in its cur rent form and request that the Legislature consider and adopt the NJ SBA's suggested amendments as set forth above.
Again, this is an issue that has received careful thought, analysis and reflection. We urge you vote "no" on this bill as it is currently drafted. For further information, please contact, Valerie Brown, Legislative Counsel, at 732-937-7512 or vbrown@njsba.com.
Very truly yours,
Valerie Brown
Legislative Counsel
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