Affidavit of William L. Pierce
September 6, 1996
IN THE UNITED STATES DISTRICT
AFFIDAVIT OF WILLIAM L. PIERCE
COMES NOW THE AFFIANT, WILLIAM L. PIERCE, and being duly sworn according to law, does hereby depose and say:
1. I am William L. Pierce, Ph.D., and am the President of the National Council For Adoption located at 1930 Seventeenth Street, NW, Washington DC. The information contained in this Affidavit is based on my own personal knowledge, except where otherwise indicated. This Affidavit is submitted for the purpose of supporting the Plaintiffs' request for a stay of the District Court's denial of a preliminary injunction pending this appeal. For the reasons stated herein, it is imperative that a stay issue in order to avoid the significant impact on the lives of the plaintiffs and their families should their adoption files be released pending this Court's consideration of the constitutional issues at stake.
2. The National Council for Adoption is a national, non-profit information and educational organization whose purpose is to promote sound, ethical adoption practices and policies. NCFA represents licensed non-profit adoption agencies and individuals who are directly involved with or interested in adoption. NCFA has one member agency located in the state of Tennessee. NCFA was founded by concerned agencies and individuals in 1980. The founders of NCFA recognized that adoption was an important option that must be protected for pregnant women and children.
3. Since 1980, NCFA has been involved nationally and on the state level directly drafting legislation to allow access to information in adoption records when all parties to the adoption consent. NCFA was actively involved for five years as an adviser to the Drafting Committee of the National Conference of Commissioners on Uniform State Laws (NCCUSL) for the Uniform Adoption Act. After three years of intense, heated debate on the issue of opening records, the Commissioners finally concluded that the only constitutional way to release the information is with unsolicited mutual consent of all the parties.
4. For the last 15 years NCFA has gone from state to state to present the case for releasing necessary non-identifying background medical information while requiring consent by the appropriate parties before releasing confidential information in adoption records. Legislature after legislature has rejected the concept of opening adoption records on demand because of legal principles and professional ethics. Under the new 1996 adoption amendments, Tennessee is now the first jurisdiction in the world to totally disregard assurances of privacy to participants of adoption that have been in place for the majority of the past century. Only Tennessee allows unfettered access by third parties to the most sensitive of information without the consent of the party to whom the information belongs. Proponents of the Tennessee law claim that it is modeled after law in New South wales, Australia. However, the law in New South Wales only allows the release of names. It does not allow third parties to read adoption records that contain very sensitive, subjective information. Kansas and Alaska similarly allow adopted adults to receive copies of their original birth certificates with the names of their birth parents, but they do not allow access to adoption records.
5. The adoption laws in all fifty states operate to terminate all rights, responsibilities and relationships between the birth family and adopted child and transfers those rights, responsibilities and relationships to the adoptive family. One of the policy reasons for the decision to seal adoption records is to send a clear message to all concerned that the child now belongs in the adoptive family for all intents and purposes. All public records, therefore, link him with the adoptive family. Adoption also nullifies the relationship between the adopted child and the biological family. Opening adoption records on demand creates the perception that the relationship between the biological family and the adopted person is still intact. In fact, the Tennessee law discusses biological "relatives" of adopted persons as if there is such a legal relationship. This perception of the adopted person as 'belonging' to the biological family interferes with the bonding and privacy of the adoptive family.
6. Adoption research is clear that the most important variable in whether an adopted person will be well adjusted is the adoptive parents' feelings of 'entitlement' to be the parents of the adopted person. The Tennessee law which transforms adoption from a state of creating a permanent family to a temporary condition until the adopted person reaches the age of 21 undermines the family's sense of security and entitlement, ultimately creating problems for adopted children. The greatest fear of adopted children when they first begin to understand the concept of adoption is that their biological parents will try to reclaim them and that their adoptive parents are not their real parents. If there is a reasonable possibility that this fear can become a reality, the child becomes preoccupied with the absent birth parent. Therefore, rather than correcting a problem, as allegedly defined by proponents of the Tennessee law, the Tennessee law will actually be promulgating a sense among adopted persons that they do not belong by undermining their full membership in their adoptive family.
7. NCFA has seen played out many times the emotional fear and concern experienced by birth parents as the result of discussions of legislative changes to allow access to adoption records. In this case, the district court has even recognized that their injury would be immediate. Women and men, not only in Tennessee have contacted NCFA as a result of media coverage of the Tennessee law change expressing concern over the threat to their privacy if the Tennessee law takes effect. These individuals express a sense of helplessness to protect themselves as any effort on their part would violate the very privacy they seek to preserve. Their request to NCFA is to continue its efforts on behalf of the thousands of anonymous individuals who rely on privacy in adoption records.
8. The Tennessee law and other less extreme laws have had a chilling effect on people attempting to adopt American children. Media attention on the opening of adoption records and the reappearance of birth parents in the lives of adopted adults and children have caused many potential parents to fear adoption in the U.S. A recent survey by the Government Accounting Office found that 10% of Americans who adopted from overseas did so because they did not trust the permanency of American adoptions. When laws suggest that there is a continuing relationship between adopted persons and birth families, even though adoption supposedly terminated that relationship and any rights, it is no wonder that adoptive parents feel this way.
9. The only women who are afforded protection of their privacy in the Tennessee Act are those whose children were produced as the result of a "crisis pregnancy." (See Tenn. Public Acts of 1996, Chapter 54 at Section 7(C)). In effect, the State has taken the position of saying to pregnant women in Tennessee: you are only entitled to confidentiality if you are faced with a crisis pregnancy. Even then the Act only excludes from disclosure information relating to the counseling of a biological mother regarding crisis pregnancy counseling. The Act does not define "crisis pregnancy counseling" and the term by any definition is not sufficient to protect from release very sensitive information about family, sexual practices, legal, emotional and health problems which have no bearing on the adopted person but may exist in an adoption record or post adoption record held by an agency, doctor, attorney, or social worker.
10. The medical record of the birth of a child often contains a history of the mother's previous pregnancies including abortions. A woman considering adoption for her born or unborn child will often receive counseling for a variety of issues unrelated to the pregnancy, all of which may be included in an adoption record. The law does not prohibit the disclosure of this information. The definition of "post adoption record" in Section 12 of the Act is extensive and covers any contacts between the department, licensed child-placing agency, or licensed clinical social worker subsequent to the adoption. Such records often contain sensitive information related to the individual problems or issues of the parties to the adoption. Depending on how agencies keep records, it may include information on any contact an individual has made with the same agency over a period of many years, whether or not it has anything to do with adoption. In other cases, the individuals may have sought services which they believed to be related to adoption, but the problems were due to current family issues. Because the contact was initially made for "post-adoption" services, the intimate family details would be part of the "post-adoption record."
11. Based on our many inquiries from birth parents, and women contemplating placing their child for adoption, this law will have a chilling effect on the adoption process for women facing problem pregnancies. First, some women desire confidentiality so they can choose adoption. Therefore, the burden on the state may increase as these women and young girls, some of whom are ill prepared to parent, abuse or neglect their children. Second, women who choose adoption provide candid information which may be of importance to adoptive parents in providing for the special needs of their children. Adoption counselors have seen a great willingness to share potentially embarrassing information with adoptive parents when birth parents were assured that the information will not reflect on them personally. However, the fear that anyone would trace the information to the individual birth parent is a very real fear. Third, conscientious counselors will "sterilize" files so that personal information which may be embarrassing cannot be revealed about clients who have come to trust the counselor to protect the client's interests. The second and third effects, as stated above, will have the opposite effect of the stated objectives of the law, which is to provide medical and background information to adopted persons so they can use it in their own health care.
12. In addition, confidentiality is a primary ethical principle of every profession involved with adoption. The Tennessee "contact veto" law requires professionals to violate their personal and professional codes of ethics, which will have the effect of driving the most ethical and conscientious of providers from adoption service. This law will also have a chilling effect on the other services provided by these same professionals as potential clients will be less willing to trust promises of confidentiality made today which may be taken away by the legislature in the future.
13. Defendants have argued that confidentiality was never guaranteed in adoption proceedings because the consent forms which birth parents sign when surrendering their children do not explicitly discuss confidentiality and historically adoption law has contained a provision that a court can order the opening of a sealed adoption record upon good cause. This argument negates the reality of adoption practice and the professional relationship between client and adoption provider. The mere fact that adoption records are sealed by operation of statute, and will continue to be sealed from public view, creates an expectation of a high degree of confidentiality. Conscientious, ethical adoption providers explain the sealing of records and the good cause exception to breaching confidentiality. Birth parents made decisions about adoption based on this limited exposure.
14. Under these circumstances there is no need to explicitly describe the heightened level of confidentiality at stake in adoptions, since it is inherent in every professional relationship involved in the process. Social workers are trained to discuss the confidential nature of the therapeutic relationship with each and every client. Social workers are prohibited from discussing a client or revealing any information about a client to a third party without an explicit "release of information" consent from the client spelling out what information can be released and to whom. In addition, adoption agencies have historically used the term "confidential" in all advertising for services providing assurances to clients even before contact that their sensitive, personal information will be safe with the adoption agency and personnel. The Tennessee law requires adoption agencies and professionals to violate those confidences which would under ordinary circumstances expose them to lawsuits for malpractice or professional sanctions including loss of license.
15. Inadequate protections against violations of contact veto. The District Court placed a great deal of emphasis on the protection offered by the so-called "contact veto" provision of the Act. (See Act at § 8). This provides that a person who is eligible for access to an adoption record may not make contact with anyone eligible to file a contact veto until the department has completed its search to establish whether an individual has filed a contact veto. However, subsection (4) states that "if the person eligible to request access to the records does state on the form a desire to contact any person who is eligible to file a contact veto, then the department shall search the Contact Veto Registry (emphasis added) to determine whether a contact veto has been filed or whether consent has been given for further contact with the person who is sought." Furthermore, subsection (5) states, "The department shall only search for those persons with whom the requesting party seeks contact." (emphasis added). Therefore, if an individual wants to make contact and does not want to have his desire vetoed by anyone, it is very easy for him to circumvent the entire veto protection by telling the department that he does not wish to contact anyone, but only wants identifying information about them. The Department must release the records and no search will be done because it was not requested. Moreover, if contact does occur, the adoptee making contact may claim either that no violation of the contact veto occurred because no veto was filed, or that the intention to seek contact came "later" and was not present at the time the information was requested from the Department.
16. Birth parents who made thoughtful, responsible choices by placing children for adoption in Tennessee through traditional, confidential adoption are not free to move on and establish new family relationships without the constant fear that their past will be exposed to their families, friends, or communities.
17. The main purpose for having information which identifies an individual is to make contact with that individual. A name with no relationship does not resolve any expressed need, except perhaps for those seeking to trace their genetic "roots" or to join the Daughters of the American Revolution. The previous system required the State to contact the individual parties before information could be released. The current system supposedly would do the same thing if an individual candidly expresses a desire for personal contact with his or her birth parent. However, if all the adoptee desires is background information about his or her birth parents, there are already mechanisms in place to release medical and other non-identifying background information without violating the privacy of other parties. Therefore, since those who claim to want contact still must get prior permission, the only substantive effect of the new Tennessee "contact veto" law is to violate a birth parent's privacy for the benefit of an adopted person who claims not to want contact anyway and therefore, does not need identifying information.
18. The Tennessee "contact veto" provision does not provide adequate protection of adoptive parents' right to rear minor children as they see fit and therefore is an intrusion into familial privacy. The legislature recognized that the issues involved in the release of confidential information within adoption records was sensitive and not appropriate for children under the age of 21 who are under the supervision of their parents. Therefore, the law requires that adopted persons initiating searches must be age 21 or older. What the Act fails to take into account is that when a 21-year-old adopted person seeks a birth parent, that birth parent may often have children under the age of 21 who will be adversely affected by any contact because of their age. Even if no contact is made, as the District Court so found, the threat of contact can have a negative impact on their mother-child relationship.
Further affiant saith naught.
Sworn to before me this 6th day of
© 1996 American Adoption