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An out-of-the-blue telephone call ended 30 years of sleepless nights for Frederick F. Greenman Jr. and put the Manhattan copyright attorney on the path toward a pro bono commitment to opening adoption records. The startling call a decade ago came from an unknown man in California who bluntly asked Greenman if he had fathered an out-of-wedlock daughter in Boston around 1960. “I said, ‘Why do you want to know?’” recalled Greenman, a partner at Deutsch Klagsbrun & Blasband, in an interview last week. “He said, ‘Well, if you did, I married her.’ I was flabbergasted.” Greenman admitted that he had indeed become a father while studying at Harvard Law School. The mother, a German woman he had met while serving overseas in the Army and brought back to Cambridge, Mass., had decided she could not care for the child. At the time, the very concept of single fatherhood was foreign, and the child was surrendered for adoption. Greenman and the mother immediately parted company. He married another woman, and for the next three decades the resident of Central Park West was haunted by memories of the daughter he had given away and cursed with the resulting clinical depression and insomnia. “I started sleeping better as soon as I got that call from my son-in-law,” Greenman said. Since then, Greenman has re-established ties with his daughter, a lawyer in California, and has worked to help adoptees secure information about their birth parents. In Greenman’s case, it was fairly easy; his daughter knew his name and knew he went to Harvard. Her husband, acting as somewhat of a intermediary, contacted Greenman. But for other adoptees and birth parents, particularly in New York, obtaining information is no easy task. “New York probably has the most regressive statutes in the country,” Greenman said. “It is the only state I know of that attempts to control not only the records maintained by the state, but also those maintained by [private] agencies. A lot of private agencies feel they cannot tell adoptees who their birth parents are, even if the birth parents have consented.” Greenman has become pro bono legal advisor to the American Adoption Congress, which advocates open adoption records, and participated in litigation in Tennessee and Oregon to uphold new laws in those states that grant adoptees access to their original birth certificate. WELL-INTENTIONED LAWS New York follows a pattern that has been standard nationally for several decades, generally since the 1920s. When a child is adopted, a new birth certificate listing the adoptive parents is issued, and the original is sealed and accessible only through a court order. Those laws were crafted with the best of intentions — to finalize adoptions; to make the adoptive family as similar to the birth family as possible; to protect the privacy interests of birth parents; to shield adoptive children and adoptive parents from unwanted contact, and interference; and to protect out-of-wedlock children from the stigma of illegitimacy. But times have changed, and now there is a movement, and some momentum, for giving adoptees a more complete view of their personal history. Kansas and Alaska have always allowed adult adoptees access to records on demand, and in recent years other states have been following their lead. Tennessee has opened not only original birth certificates, but also the entire record of adoption. Delaware now permits adoptees to view their birth certificate, but gives birth mothers a veto. Montana affords some access, but its law is not fully retroactive. Oregon voters passed Measure 58, an initiative giving adult adoptees unconditional access to their original birth certificates. After various legal challenges, the law took effect this spring. Alabama, which had afforded adult adoptees the right to view their adoption records prior to 1991, reintroduced open access with a bill passed in May. In several other states, legislation is pending that would give adoptees the right to petition for their original birth certificates. Additionally, some 30 states have provisions that will allow adoptees to contact their birth mother through an intermediary, who asks for consent to arrange direct communication. STATUS IN NEW YORK New York law on access is generally covered under Section 114 of the Domestic Relations Law and Section 5138 of the Public Health Law. In New York the records are still under tight seal, although there is a provision for what is called a “passive” or “mutual consent” registry. If adoptees and birth parents both register with a state agency, the information can be released. Critics, however, say the law is ineffective since it is little known. “What should be done [in New York] is what has been done in several other states,” Greenman said. “Adoptees should have full access to identifying information on their birth parents. There should be a means for birth parents to communicate their wishes to the adoptees.” There have been bills introduced in the state legislature to open New York’s adoption records. However, none has mustered much support, and all have generated hostility and opposition, generally from adoptive parents who were under the impression — rightly or wrongly — that they had been guaranteed confidentiality. In the lower house of the Legislature, Assemblywoman Helene Weinstein, D-Brooklyn, has proposed some increased access so that adoptees could obtain pertinent health and genetic information without learning the identity or whereabouts of their birth parents. However, Weinstein has strong reservations about opening adoption records, especially retroactively. In the upper house, the situation is similar. Although some senators would remove the veil of secrecy, there is certainly not widespread support. What there is in abundance, though, is concern over upsetting the status quo, particularly in adoptions that were finalized long ago. Although there is a serious legal question as to whether promises of confidentiality are binding and enforceable — many legal experts and some courts have said they are not, since adoption records are virtually always accessible upon judicial decree — the privacy issue often supersedes “reform.” Lawmakers are extremely reluctant to interfere with even the perceived privacy rights of birth parents, whether or not those “rights” have legal or moral force. COMMITTEE REVIEW Meanwhile, the Surrogate’s Court Practice Committee is undertaking its own preliminary examination of the issue. Erie County, N.Y., Surrogate Joseph S. Mattina said the Oregon law, and a resulting flurry of requests for original birth certificates, is sending ripples across the country. “That is a pretty drastic approach, and I don’t know if the state of New York and the legislature is really in the mood to follow that approach,” said Mattina, chairman of the Practice Committee, of the Oregon initiative. “But obviously there have to be some changes made.” Mattina said the Internet has “opened a new vista” of information. Today, with a smidgen of data, an adoptee or birth parent can often track down their parent or child. “The legislature has to face up to at least discussing this, debating it, and maybe coming up with some approach to re-evaluating the former standards,” Mattina said. “This has been brewing for years. There are activists on both sides of the fence. There are a lot of people demanding these rights be properly codified in the law.” Mattina said the committee is likely to make internal recommendations this fall to the Surrogate’s Court Advisory Committee. From there, a proposal could be advanced, or the issue could simply be tabled. But at the moment, no Solomonic solution is at hand. “What we are looking into are some reasonable proposals that will satisfy all of the parties involved, to some extent,” he said. AN EMOTIONAL DEBATE Frequently, movement to change access laws sparks wrenching debate from all angles of the adoption “triad” that includes adoptees, adoptive parents, and birth parents. Laws to open adoption records are virtually always the subject of battles in a court of law, and virtually always challenged in the court of public opinion, with representatives of adoptive parents and religious organizations weighing in heavily. In Tennessee, birth parents alleged that the disclosure law violated a vested right of confidentiality and interfered with their familial and procreational privacy rights. Opponents challenged the law in federal and Tennessee state court, but were ultimately unsuccessful in either arena. Last year, in Promise Doe v. Sundquist, 2 SW3d 919, the Tennessee Supreme Court upheld the 1996 law. “Although the prospect of having the records of the adoption released to the child 21 years later may have some bearing on the [birth parents'] decision, it is far too speculative to conclude that it interferes with the right to procreational privacy,” Justice Riley Anderson wrote for the court. In addition to legal challenges, there is often a spiritual impediment to what advocates call “reform” and opponents consider regression. For example, the Christian Coalition has opposed efforts to open records, claiming that exposing women to unwanted reunions would result in more abortions. And the 1999 handbook of the Church of Jesus Christ of Latter-Day Saints advises church leaders to discourage adoptees from seeking the identify of their birth parents. William L. Pierce, the founding president and now a consultant to the National Council for Adoption in Washington, D.C., said records should not be opened except in cases of mutual consent. “When people went to attorneys or social workers or judges and talked about adoption and asked if it would be private, they were told ‘yes,’ ” Pierce said. “ Judges told them from the bench that the records were sealed. Thousands upon thousands of people were promised either directly or [given] an implied contractual promise of privacy. You do not, in a country of laws, retroactively change the impact of an implied contract.” Pierce acknowledged changing the access laws prospectively is an entirely different matter. However, he still maintains that privacy is the best policy and contends that if confidentiality is not assured, a “lot of people are going to decide on choices other than adoption,” such as abortion. Pierce said polls show that even many pro-lifers would opt for abortion, unless confidentiality of the adoption was assured. He also said adoptions decreased substantially in Great Britain after a change in the law in 1975 allowed adoptees to view their original birth certificates. Additionally, Pierce notes that 13 states, including New York, have enacted laws in the last 18 months that guarantee immunity and anonymity to women who abandon their babies for adoption at a safe harbor. He said that trend is inconsistent with the movement to open adoption records. Opponents to opening the records express concern that access could undermine carefully nurtured relationships between adoptive parents and adoptees, potentially opening a can of worms with myriad societal implications. Yet Greenman said the concerns of those opposed to opening the records are misguided and frequently rooted in ignorance. “[Opposition] tends to come from some adoptive parents who are concerned, understandably, that if their children contact their birth parents, their affections will be alienated,” Greenman said. “The birth parents are practically never thought of by the children as their real parents; their real parents are the ones that brought them up. Adoptive parents may be good parents, they may be bad parents, but parents they are.” In his own case, Greenman said he sees his daughter approximately six times a year but realizes that she will never think of him as her father, and that he will never play a role in her life as anything more than, say, a favored uncle. That relationship, he said, is typical when an adoptee and birth parent reunite. “What most birth parents are ashamed of is not that they had a child out of wedlock, but that they surrendered the child,” Greenman said. “What all of us are very much ashamed of is that we gave up that child and exposed her to what is called the ‘kindness of strangers.’ It isn’t always kind. When your child comes back to you and says, ‘Why did you give me up?’ That is not an easy question to answer.”

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