"Privacy v. Secrecy: The Open Adoption Records Movement and Its Impact on Hawai'i" By Bobbi W. Y. Lum
in "University of Hawai'i Law Review/Vol. 15:483"
You can obtain a copy of this text by writing to:
Supreme Court Law Library
417 S. King Street, Room 119
Honolulu, Hawaii
HI 96813
U.S.A.

Privacy v. secrecy : The open adoption records movements and its impact on Hawai'i

All of us need to know our past, not only for a sense of lineage and heritage, but for a fundamental and crucial sense of our very selves : our identity is incomplete and our sense of self retarded without a real personal historical connection.

Is there any reasonable justification for us to prevent, in perpetuity, the geneological [sic] self-discovery of those among us who were adopted ?(1)

Many adults who were adopted as children ask this question. Experts estimate there are about six million Americans who are adoptees.(2) In Hawai'i, approximately 20,000 people, or 2% of the population are adopted.(3) These figures, however, understate the magnitude of adoption's reach because an adoption involves a number of parties. These parties include the adoptive parents, birthparents,(4) siblings (both birth and adoptive), grandparents.(both birth and adoptive), and other members of the extended family. If we assume at least six million adoptees, twelve million birthparents, and twelve million adoptive parents, adoption touches one in eight Americans.(5)

In America, and in other western societies, confidentiality plays a key role in adoption practices.(6) In other societies, hovewer, confidentiality has no role at all in adoption practices.(7) For example, the Hawaiians, Eskimos, Thais employ the concept retaining one's birthright even though one is adopted.(8) In contrast, by 1950, most state adoption laws, including those of Hawai'i, denied a child's birthright.(9) The adoption laws did this by sealing the child's original birth certificate and other records in the adoption file.(10)

Despite the sealed records, a small number of adult adoptees all over the country have overcome the obstacles and have been able to search for and reunite with birthparents.(11) As adults adoptees began to question the practice of sealing records, they formed activists groups to provide mutual support for the search for birthparents.(12) These groups brought civil rights cases into courts to test the constitutionality of provisions requiring the lifetime sealing of adoption records.(13) Additionally, these groups introduced legislation that changed the adoption laws of various state.(14) Such a change occured in Hawai'i with the passage of Hawai'i's new law that provides access to adoption records.(15) The new law took effect on January 1, 1991.(16)

This commentary explains the controversy surrounding the open adoption records movement and provides an overview of Hawai'i's new law and its impact. Part I gives a brief background of adoption records law in America. Part II describes the background of adoption records in Hawai'i before the 1991 change. Part III discusses the reasons why Hawai'i's old law was changed. Part IV provides an overview of the options that were available to Hawai'i in changing the law. Part V furnishes the provisions of the new law. Part VI explores the impact of the new law on adoption in Hawai'i. Lastly, part VII provides the author's conclusions.

The Puritans brought the apprenticeship system from England to America.(17) That system became the model for early adoption practices.(18) Traditionally, relatives cared for orphans in accordance with the will of the deceased.(19) However, when there were no relatives, other people took in orphans to serve as their apprentices.(20) The shortage of labor and economic needs at that time superseded any concern for the children's welfare.(21)

As the nineteenth century approached, conditions in America changed.(22) With influx of immigrants into the country, the task of finding workers was no longer difficult.(23) In fact, hiring an immigrant, who would work for very little, was easier than taking in an orphan who would require many years of care.(24) At the same time, the number of homeless children increased because poor and uneducated immigrants could not support all of their children.(25) Society was thus faced with the problem of how to care for these children in a manner that insured they would grow up to be respectable and useful members of society.(26) The answer was the orphanage.(27)

By the 1850s, thousands of homeless children lived in orphanages.(28) Orphanages required strict order and delivered harsh punishment to those who resisted.(29) As time went on, hovewer, people realized that orphanages resembled prisons or army camps and that this resemblance was not desirable.(30) After this realization, orphanages placed more children in homes. (31)Hovewer, the status of these children was vague.(32) They were not servants, yet they were not family members.(33) They were free to leave if they wanted, or the families could discharge them.(34) In this atmosphere, gradually, states became aware of the need to pass laws that safeguarded children's welfare.(35) In 1851, Massachussetts became the first state to pass a law permitting legal adoptions.(36) The other states followed.(37)

Then, as now, adoptions were carried out through licensed private adoption agencies, state agencies, and independant placement.(38) During the 1950s and 1960s there were many adoptable babies available through agencies, and independant adoptions declined.(39) During the 1970s, hovewer, there was a shortage of adoptable babies because of the increased use of contraception, the liberalization of abortion, and society`s acceptance of women raising children out of wedlock.(40) As a result of this shortage, independent adoptions as well as illegal black market adoptions increased.(41) Subsequently, because of the risks incurred in independent adoptions,.(42) some states enacted standards and procedures to protect children in independent adoptions.(43)

Additionally, to insure that adopted children were given status and treatment equal to that given to natural children, most states enacted laws requiring the "rebirth " of the adopted child as the child of the Adoptive family with a new identification in the form if an amended birth certificate.(44) The rationale for these laws was that a person shold not bear the stigma of illegitimacy or suffer rejection because of the "adopted " label. (45) The original birth certificate was sealed to protect the adoptee and adoptive parents from disruption, harassment, or blackmail by the birthparents or others and allow the birthparents to make new lives for themselves.(46) This was the beginning of the sealed records controversy.

Adoption agencies advised parents who were adopting nonrelated children to treat them as if they were their natural born.(47) Adoption agency policies regarding the amount and kinds of information that should be given to the adoptive parents and the adoptees about the child's background varied from agency to agency.(48)

Gradually adoption agencies realized that background information was important to the adoptee.(49) Thus, beginning in the 1960s, agencies kept carefully recorded histories of the background data.(50) Agencies provided adoptive parents with nonidentifying data on the birthparents such as "nationality, education, health factors, physical characteristics, occupations, talents, and abilities".(51) Controversy existed, however, concerning whether to reveal negative information "such as mental illness, criminal behavior, alcoholism, and illegitimacy".(52)

In 1980, a proposed Model State Adoption Act, developed by an independant expert panel under President Carter's administration, was published in the Federal Register.(53) The Department of Health, Education, and Welfare asked for public comments on the proposed act before it prepared the final version.(54) The proposed act raised and disposed of all the objections to open records.(55) section 502.(d) of the porposed act stated that the adult adoptee, by right, may obtain information identifying his birthparents.(56) Efforts to finalize the act were thwarted under the Reagan administrtion.(57)

A. Traditional Hawaiian Practices

In traditional Hawaiian culture, there were two basic forms of adoption: ho'okama and hanai.(58) In ho'okama adoption, the adoptive parents took as their own an unrelated child or an adult, but they did not necessarily assume full responsibility over the adoptee.(59) In hanai adoption, the adoptive parents took a child into their household and assumed full responsability and authority over the child.(60) Hanai children were almost always taken from within the family group and only after careful consideration of the background and true parentage of the child.(61)

In Hawaiian culture, the ties between the adopted child and the birthparents were not severed.(62) Because family clan or ohana was a vitally important concept to Hawaiians, the adopted child knew his or her birthparents.(63) The child belonged to two families openly and proudly.(64)

The term hanai is still used today, but with varying definitions.(65) Most people use the term adoption to mean the legal asssumption of parental rights and obligations and the term hanai to mean the informal, non-legal assumption of parental rights and obligations.(66) In any event, as the next section shows, the tradition of ensuring that the adopted child knew about his or her parentage was lost when Hawai'i's original adoption laws were enacted.

B. Adoption Records Law in Hawai'i Before the 1991 Change

In 1945, Hawai'i enacted a law mandating the issuance of a new birth certificate in the name of the adoptive family at the time the adoptive decree was finalized.(67) The law also required the court to seal the records of the adoption proceeding.(68)

The original adoption records law was amended through the years, but basic requirement that must be permanently sealed has remained. Prior to its 1990 revision, Hawaii Revised Statutes section 578-15 stated that after the adoption petition was filed and before the adoption decree was entered, the records of the adoption proceedings were open to inspection only by the parties or their attorneys, the state social services agency, or upon a showing of good cause and order of the court.(69) The petition for adoption could not contain the name oF the adoptee or the name of either of the birthparents except in the case of an individual being adopted by a stepparent.(70) The hearing of the petition was not open to the public.(71) Upon the entry of the decree, the clerk of the court sealed the records unless the petitioner waived this requirement.(720. The seal could not be broken and records could not be inspected by any person, including the parties, except upon order of the family court.(73)

When adult adoptees sought information about their birthparents or their heritage, a family court judge would answer each inquiry individually.(74) Volunteers would research the court records and set out the information that could be released to the adoptee for the judge's approval.(75) To the extent available in the records, the judge supplied information relating to the birthparents' ethnicity or nationality, age, education, occupation, marital status, physical and personality traits, and medical history.(76) The judge did not provide the names of the birthparents.(77)

Family court later set up an internal procedure that allowed birthparents and adoptees to register with the court their desire to exchange identifying information.(78) When both parties consented, they were referred for counseling and reunification through an adoption agency.(79)

for many years, the states and adoption agencies have been under pressure to revise traditional policies on sharing information and on facilitating reunions between adoptees and birthparents.(83) To fully comprehend the controversy over open adoption records and all of the issues that were addressed and hotly debated in theperiod before Hawai'i's adoption records law was changed, each party's perspective must be examined.

A. The Different Perspectives

1. The Adoptee

A woman who brings a child into the world has a responsability to that child. Only she can give him his story and explain why the adoption took place. Only she can deliver to the child his biological and historical identity. She can always refuse the petitioner ... but society should not guard her with the protective cover of anonymity. If someone has to be favored ... let it be the innocent party, the adopted adult, who maintains that his rights are being denied and his best interests not being served by yesterday's arrangements... If adoptees need to be reconnected to their origins, why should separation be judged the higher good?(84)

Adopted people have only recently begun to talk about their lives as adoptees.(85) Previously, because adoptive families were supposed to be just like other families, adoptees usually tried to suppress any feelings about being different.(86) Today, the more they talk, write, and study, the more they realize that being adopted makes them different.(87) Researchers say being different is not necessarily a bad thing.(88) However, adoptees need to be aware of the difference and come to terms with it.(89)

To be adopted is to have an incomplete identity, an incomplete sense of who you are.(90) Your identity is important because it connects you to other people and gives you a sense of belonging.(91) To some adoptees, having an incomplete identity is not troubling.(92) To others, it is vitally important to complete their identies by finding out their family histories.(93) For those adoptees who do not feel the need to complete their identities by finding out their identities, an illness or turning point in life, such as marriage or having children, may influence them to search for information on their families histories.(94)

Adoptees contend that they are co-owners of information about themselves, and, thus, it is unfair to deny this information to them.(95) The adoptees themselves have never consented to the sealing of information.(96) Most adoptees do not question confidentiality during their childhoods but believe that the conditions justifying such protection are no longer needed when they reach adulthood.(97)

Of course, not every adoptee feels the need to search for birthparents.(98) Those who do feel the need find that even making the decision to search is not easy.(99) In the past, an adoptee who wanted to search was treated as abnormal.(100) Moreover, adoptive parents who do not understand the adoptee's need for information may make the adoptee feel guilty for "betraying" them, for not being grateful and loyal.(101)

Some adoptees may be afraid of what the search may reveal.(102) But, even an adoptee who discovers a disturbing history ususlly says he or she is glad to know the truth.(103) The known, however terrible, is often easier to live with than the lunknown because the question are finally put to rest.(104)

2. The birthparents

I am always looking for my daughter... Her birth is the single most inportant even of my life; since that day, her existence has shaped who I am....

I know, I know, I gave her away, I can hear you thinking; I knew what I was doing and so why am I making a fuss now?

A signature cannot abrogate my feelings.(105)

Today, the notion that the birthmother(106) will forget about the child she gave up for adoption is considered a myth.(107) Studies show that birthmothers never really forget and, for some, the relinquishment results in deep emotional problems.(108) Many birthmothers say they were not aware of the contractual arrangement regarding condifentiality and that they were not given an option because ot was silently assumed they wanted to be anonymous.(109) Birthmothers realize they have no legal claims to the adoptees, but they want to tell their stories and, in turn, hear the adoptees' stories.(110) In a study regarding attitudes toward the release of identifying information to adoptees, close to ninety percent of all birthmothers surveyed said they supported the release of the information.(111)

Birthmothers do not often search, hovewer, because they fear being intrusive or misunderstood by the adoptee and adoptive parents.(112) In one expert's study, eighty-two percent of the birthmothers surveyed said that they were interested in reunions with the adult adoptees; however, only five percent of the birthmothers were themselves actively searching for the adoptees.(113)

Of course, there are those birthparents who want to remain unknown and who do not want contact with the adoptee because of the foreseeable disruptions tha will occur in the birthparents' lives.(114) Moreover, some experts believe the confidentiality guarantee can be the deciding factor in a woman's decision regarding abortion(115) or adoption.(116) One birthmother sued her physician for helping the now adult adoptee whom she had placed with an adoptive family learn her identity.(117) The Oregon court held that breaching the confidence of the birthparent was an actionable offense.(118) A Missouri court has stated: "There must be finality for the natural parents and a new beginning; if there is a right of privacy not to be lightly infringed, it would seem to be theirs".(119)

3. The adoptive parents

If they want to know about their parents nobody should be allowed to keep that information from them. It's a natural desire and a part of growing up.(120)

***

It would be upsetting to us; but how can you say you can't look for your parents? He would do it anyway when he gets [to] a certain age with or without our consent. It certainly would deteriorate our relationship if we went against him. However, if he does like his parents and wants to maintain a relationship, I hope by that time our love will be so strong that it wont't make a difference between us.(121)

***

If we had known that there was a possibility of the records being opened, we never would have adopted. We did not adopt our children to be caretakers or babysitters for the natural mothers who gave them up for adoption. We adopted because we were guaranteed total anomymity, and we feel that promise must be honored.(122)

Understanding the adoptive parent's viewpoint requires an awareness of the reasons for adopting a child.(123) In most cases, it is because of infertility.(124) Infertility can affect every aspect of an adoptive couple's lives.(125) Infertile couples receive little help in understanding their feelings of shame and guilt.(126) Their psychological reactions to infertility are often similar to those of grief in adjusting to a death.(127) One expert explains:

The process of grief, in essence, id for their loss of reproductive function and for the loss of the biological children they had expected, but never could have. When they have resolved their own feelings of loss, they are in a better position to help the adopted child to deal with the loss in his/her own background.(128)

Today, researchers find that the majority of adoptive parents feel secure about their relationships with their adoptive children and do not think information should be withheld from them after adulthood.(129) This finding is supported by a study that showed that close to seventy percent of adoptive parents surveyed supported the release of identifying information to adoptees.(130)

There are those adoptive parents, however, who feel, at the very least, that the adoptee should obtain their permission before trying to obtain identifying information on birthparents.(131) Some of these adoptive parents feel they were given a pledge of confidentiality.(132) They feel that if the department or agency decides unilaterally to change the ground rules, it has the moral and legal obligation to grant them a say in the decision on disclosure of information.(133)

4. The state

The primary interest of the public is to preserve the integrity of the adoptive process. That is, the continued existence of adoption as a humane solution to the serious social problem of children who are or may be unwanted, abused or negelected. In order to maintain it, the public has an interest in assuring that changes in law, policy or practice will not be made which negatively affect the supply of capable adoptive parents [] to make decisions which are the best for them and their children. We should not increase the risk of neglect to any child, nor should we force parents to resort to the black market in order to surrender children they can't care for.(134)

The state wants to honor the promises of anonymity given to the parties at the time of the adoption.(135) The state also wants to maintain the viability of the adoption system so that people will continue to use the system.(136) The concern is that the absence of confidentiality will make birthparents less likely to relinquish their child for adoption and make potential adoptive parents less likely to adopt a child.(137)

From the state's viewpoint, confidentiality helps to protect birthparents' privacy rights.(138) It gives the adoptive parents the opportunity to create a secure family relationship free from intrusion.(139) It helps the adoptee develop a stable relationship with the adoptive parents and safeguards the adoptee against psychological distress from stigmatizing disclosures about his or her birth.(140) Confidentiality also encourages people to be honest so that all facts needed to make the best placement for the child will be revealed. (141)

B. The Inability to Meet the "Good Cause" Requirement

The movement to change Hawai'i's sealed adoption records law arose because of the different parties' views as expressed above and also because of the inability to open sealed adoption records through the courts. To protect the integrity of the adoption process and the privacy of the people involved, most states, like Hawaii, had guaranteed confidentiality by mandating that adoption records would remain sealed unless the petitioner showed there was "good cause" to open the records.(142) The courts, however, did not have a standard for goood cause and were reluctant to open records.(143) Consequently, adoptees had a heavy burden of persuasion.(144)

"Good cause" it is admitted, has no universal, black-letter definition.(145) The courts must decide whether good cause exists and the extent of disclosure that is appropriate on the facts of each case.(146) Courts have generally held that the mere desire of an adoptee to learn of his or her ancestry cannot, in itself, constitute good cause when balanced against the interests of the other parties to the adoption process.(147)

If an adoptee's mere desire to learn of his or her ancestry is not deemed good cause, what about the adoptee's need for medical information? In Hawai'i, the release of medical information has been allowed as long as identifying data is not released.(148) In other states, however, the adoptee has to petition the courts to obtain medical information with or without identifying information.(149) These petitions have met with varying levels of success.(150)

The adopteee has also argued, with mixed responses from the courts, to unseal adoption records because of inheritance rights,(151) religious reasons,(152) and a desire to find siblings.(153) Adding to an adoptee's frustration are paternalistic courts who refuse to unseal records even when a birthparent has consented.(154) Judges often treat the adoptee as an eternal child who should be grateful and loyal to his or her adoptive parents and who must be shielded from the truth.(155)

Given the failure of the courts to articulate a good cause standard and their harsh attitudes toward opening sealed adoption records, adoptees looked for another approach to the problem. That approach took the form of a constitutional attack on sealed records laws.

C. The Inability to Attack Sealed Records on Constitutional Grounds

1. Privacy rights

In 1979, the United States Court of Appeals for the Second Circuit heard constitutional arguments attacking sealed adoption records laws and their "good cause" requirements for the first time in ALMA Society, Inc. V. Mellon.(156) ALMA adoptees asserted that learning the identity of their parents is a fundamental privacy right protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.(157)

In analyzing sealed records laws and the right to privacy, the court focused upon the sensitive nature of the potentially conflicting interests and family privacy in general.(158) The court concluded that the statute, providing for release of information on a showing of good cause, permissibly balanced the interests of all parties (the adoptee's need and the birthparents' and adoptive parents' privacy expectations) and did not "unconstitutionally infringe upon or arbitrarily remove appellants' rights of identity, privacy, or personhood."(159)

2. Equal Protection rights

In their second argument, ALMA adoptees alleged that sealed records laws violate the Equal Protection Clause of the Fourteenth Amendment.(160) The adoptees argued that adoptees are a vulnerable or "suspect" class accorded strict scrutinity under equal protection analysis.(160) The United States Supreme Court has held that classification based on race, alienage, and national origin trigger strict scrutinity.(162) Additionally, a "quasi-suspect" class exists for those classifications based on sex or illegitimacy, and unequal treatment of quasi-suspect classes must serve important government objectives and be substantially related to accomplishment of those objectives.(163) ALMA adoptees argued they were entitled to at least the same level of judicial scrutinity afforded illegitimates and that the good cause requirement could not withstand this heightened level of scrutinity.(164)

The ALMA court found no logic in comparing adult adoptees who must show good cause to access birth records with illegitimate persons who have unrestricted access to birth records.(165) Furthermore, the court concluded that even if adopted status was deemed a quasi-suspect class, the sealed records laws would survive intermediate scrutinity because they are "substantially related to an important state interest. ".(166)

3. Abolishment of slavery

In their third argument, ALMA adoptees proposed that sealed records laws impose on them a "badge or incident" of slavery that had been abolished by the Thirteenth Amendment.(167) The adoptees compared their status under sealed records laws to that of slave children who were sold before they were old enough to remember their parents.(168) They argued that because adoptees, like slave children, are unable to communicate with their birthparents, they are forced to wear a "badge or incident" of slavery.(169)

The ALMA court rejected this novel Thirteenth Amendment argument saying it did not conform to the United States Supreme Court's interpretation of the Thirteenth Amendment.(170) The ALMA court pointed out that the Supreme Court has never held that the Thirteenth Amendment addresses the badges and incidents of slavery as well as the actual condition of slavery.(171) Moreover, the Supreme Court has been very reluctant to expand the list of traits subject to strict srutinity.(172) Additionally, the ALMA court pointed out that a broad construction of slavery would enable the Thirteenth Amendment to engulf many of the rights of the Fourteenth Amendment and, thus, make the two redundant.(173)

4. First Amendment rights

The Supreme Court of Missouri heard a First Amendment challenge to sealed records laws in In re Maples.(174) Maples, an adoptee, alleged that the sealed records laws violate the right to reveive information, a penumbral First Amendment right.(175) Maples cited cases where the principle behind the decisions was the constitutional prohibition against restricting the free flow of ideas from one person to another.(176) However, the Maples court did nnot find this principle applicable to adoption records. (177) The court held that the state was exercicing a "valid state interest, balancing conflicting rights of privacy and protecting the integrety of the adoption process" and was not infringing on Maples's First Amendment rights.(178)

Given the failure of the attempts to attack the sealed records laws in the courts, open adoption records support groups turned to lobbying for adoption law reform.(179) The states have pursued different options and methods on facilitating informtation sharing and reunions between adoptees and birthparents. Ultimately, the State of Hawaii Legislature chose the search and consent option.(180)

A. Original Birth Certificat Laws

Alaska and Kansas enacted laws that allow adoptees, upon reaching the age of majority, to obtain copies of their original birth certificates.(181) These laws give adoptees the absolute right to identifying information without consents, waivers, or court orders as hurdles.(182) The disadvantage of these laws is that a birth certificate provides sparse information(183) that sometimes is not enough to enable adoptees to locate their birthparents.(184) Complete adoption records would give adoptees more information on which to base their searches.(185)

B. Voluntary Mutual Consent Adoption Registries

Voluntary registry statutes allow the adult adoptee and birthparents to register their consents to the release of identifying information.(186) If a match is made between the birthparents and the adopteee, they are notified, and identifying information is released or a meeting is facilitated.(187) The registry is operated by the state or by designated adoption agencies.(188) Registry statutes do not allow the authorities to solicit or request a person's registration.(189) Twenty-six states have enacted registry statutes.(190) Six of those states have enacted both registry statutes and search and consent statutes.(191)

In 1982, the National Committee for Adoption.("NCFA") published model state legislation for states to use in establishing a mutual consent adoption registry.(192) NCFA believes that the registry is the most "professionally sound, humane, sensitive, and practical" method for maintaining confidentiality while sharing useful information.(193)

Opponents say that relatively few matches are accomplished this way because: (1) People do not know about registries because they are not widely advertised; (2) Some registries charge a fee which not everyone can afford; and (3) Some registries require counseling, often considered demeaning to birthmothers and adult adoptees, before any meeeting takes place.(194) In a passive registry, both parties need to register before a match can be made.(195) In an active registry, an intermediary is supposed to notify the second party after the first party registers.(196) Critics say that a passive registry is too passive to be any good, and an active registry is ineffective because no one can expect a disinterested worker to be diligent in conducting a search on a stranger's behalf.(197) Some state registry statutes require adoptive parents' consent(198) or require another round of birthparent and adoptee consent forms even after previous consent forms are "matched" up.(199) Some statutes require registrants to attend face-to-face conferences with reprensentatives of the registry before identifying information ca be given to them.(200)

C. Search and Consent Laws

Search and consent laws allow access to records only if the consents of the other parties are obtained.(201) Under these laws, although an adult adoptee does not have an absolute right to his or her adoption records, the state has an affirmative duty to search for the birthparents and request their consents to the release of the records.(292) To cover the search cost, an adoptee is required to pay a fee.(203) The search is time-limited, and contact with birthparents should be personal and confidential.(204) If both birthparents refuse consent, the adoptee has no recourse other than to ask the court to open the records.(205) Seventeen states have enacted search and consent laws.(206) Six of these states have also enacted registry laws.(207)

Although the search and consent statutes allow access to adoption records, there are disadvantages. For example, in some states, the state still has the prerogative of refusing release even when all the consents are given.(208) Varying provisions are made for birthparents who cannot be located and for borthparents who are deceased. Some of these provisions give the courts the ultimate decision. These provisions are obstacles to adoption records access because vague standards are used in allowing the courts to decide. For example, the Minnesota statute says that if the state is unable to notify the birthparent, the adoptee may petition the court for disclosure, and the court shall grant the petition if "the court determines that disclosure of the information would be of greater benefit than nondisclosure".(209) In Washington, if the birthparent is deceased, the court "may" order disclosure of his or her identity.(210) Some states put up other obstacles to records access by requiring the adoptive parents' consent.(211)

The open adoption records reform movement in Hawai'i was spearheaded by members of the Adoption Circle of Hawaii, Inc.("ACH"), a non-profit organization of adoptees, adoptive parents, and birthparents.(212) In 1990, ACH, arguying that denying access to the records violated human rights, lobbied the legislature to open adoption records to adoptees, birthparents, and adoptive parents when the adoptee reaches the age of eighteen.(213) In lengthly, emotion-laden hearings, numerous adoptees, birthparents, adoptive parents, attorneys, and social workers testified in favor of open records.(214) The legislators who held the hearings also received testimony in favor of the open records from various organizations.(215)

The National Committee for Adoption,(216) adoption attorneys,(217) birthparents, adoptive parents, and others opposed ACH's efforts.(218) The Department of Human Services recommended only slight modifications to the law.(219) Representative Mike O'Kieffe stressed that those who were most strongly opposed to the bill would be those persons least likely to testify against it, such as birthparents who want to remain anonymous and who thought the State would honor its promise of confidentiality.(220) Even the media got involved, with both of Honolulu's major newspapers opposing open records.(221)

Because of the intense opposition, the legislators who introduced the bill then proposed the more conservative approach of search and consent.(222) Hawai'i's adoption records law was amended to provide for search and consent procedures and took effect on January 1, 1991.(223) Legislative conferees praised the amended law as landmark social legislation.(224)

A. The Provisions

Under the newly-amended Hawaii Revised Statutes section 578-15, for adoptions occuring before January 1, 1991, adoption records can be opened upon written request of the adoptee or adoptive parnts after the adoptee reaches the age of eighteen if certain procedural steps are taken.(225)

In the case of an adoptee request, the family court will send, within sixty days(226) by certified mail,(227) return receipt requested, the court's noticed of the request for inspection, a copy of the adoptee's actual request, any accompanying letters or photographs, and a blank affidavit form to the last known address of each birthparent.(228) The notice informs the bithparent that unless an affidavit signed by the birthparent requesting confidentiality is received within sixty days of the date of receipt of the notice, he or she waivers any rights of confidentiality, and inspection of the records will be permitted.(229) The notice also informs the birthparent that an affidavit requesting confidentiality for a period of ten years may be filed.(230)

If the family court receives a return receipt for the materials sent but does not receive an affidavit requesting confidentiality within the prescribed time limit, it will allow inspection.(231) If the notice is returned as undeliverable, the family court designates an agent to conduct a good faith and diligent search for the birthparent and to provide the notice and other documents to the birthparent.(232) The search is limited to 180 days.(233) Contacts made by the agent should be personal, whenever possible, and confidential.(234) If the birthparent cannot be found within the time limit, the court allows inspection.(235)

If an affidavit requesting confidentiality is received within the time limit, the court will not allow inspection during the effective period of the affidavit(ten years).(236) Thereafter, the birthparent may refile an affidavit every ten years or may file an affidavit effective for the remainder of the birthparent's lifetime.(237) All subsequent affidavits must be filed within ninety days of the expiration of the current affidavit.(238) An affidavit is effective until the last day of the period for which the affidavit was filled, until the birthparent revokes the affidavit, or until the birthparent is deceased, whichever occurs sooner.(239) Where two birthparents are involved and confidentiality is waived by only one of them, the inspection of the records will not include any identifying information regarding the other birthparent.(240)

For adoptions occuring after December 31, 1990, each birthparent "shall be informed of the procedures"(241) that must be followed if he or she wants to maintain confidentiality after the adoptee reaches the age of eighteen.(242) Within ninety days before the adoptee reaches the age of eighteen, a birthparent may file an affidavit with the court to request confidentiality.(243) The birthparent may refile affidavits every ten years thereafter or file an affidavit effective for the remainder of the birthparent's lifetime.(244) All affidavits after the initial affidavit must be filed within ninety days before the last efective day of the previous affidavit.(245)

If the birthparents fail to file affidavits, thea adoptee and the adoptive parents are allowed to inspect the records after the adoptee reaches the age of eighteen.(246) Again, where two birthparents are involved and confidentiality is waived by only one of them, inspection of the records will not include identifying information regarding the other birthparent.(247)

The same type of procedure is followed if the birthparent requests identifying information.(248) However, upon request by a birthparent, he or she may receive a copy of the original birth certificate any time after the adoptee reaches the age of eighteen.(249)

Notwithstanding any affidavit requesting confidentility, upon request by the adoptee or adoptive parents for ethnic background and medical information, access is allowed.(250)

A. The Final Details

Family court set forth detailled procedures to be followed in gaining acces to the adoption records.(251) For an adoptee, the procedure is as follows: First, the adoptee fills out an application form and verifies his or her identification.(252) If the form is mailed in, it must be notarized.(253) The adoptee is given a summary of the law and is reminded that he or she must apply to the circuit in which the adoption took place.(254) Second, a copy of the application, a consent form, a blank affidavit form, and a notice from the court is sent by certified mail, return receipt requested to the last known address of each birthparent.(255) Letters and photos from the adoptee can be enclosed, but additional postage must be paid by the adoptee.(256)

Within sixty days of the date notice is received, the birthparent should send back either the consent form or the affidavit requesting confidentiality.(257) If the notice was delivered succesfully and no response is sent back from the birthaprent within sixty days, the adoptee may inspect the records.(258) The adoptee may pick up a copy of the records or request that it be mailed.(259) The adoptee must pay the usual copying fee to the court.(260)

If one birthparent consents and the other denies access, the adoptee may obtain identifying information only on the birthparent who gave consent.(261) If there is any information in the file on the other adopted siblings, the adoptee may not access this information.(262)

If the notice is undeliverablle, the court refers the request to one of two designated searchers.(263) The following is an example of the way a search works.(264) Upon reveiving a referral, the searcher sends a letter giving information about the searcher and clarifying the procedure for the search to the adoptee.(265) Before the search is commenced, the adoptee must pay the fee of $300 and must send in a consent form to the court so that the searcher can access the information in the records.(266) Once these two requirements are met, the searcher has 180 days to complete the search.(267) Searching is primarily conducted through accessing public records via computer and through telephone calls.(268)

Once the searcher locates a birthparent, the searcher phones him or her to verify the identity and to confirm a mailing address.(269) The searcher then sends the packet of materials(the notice, the application, the consent form, the blank affidavit, and any letters or photographs) to the birhtparent.(270) The birthparent should respond within sixty days with either he consent or the affidavit of confidentiality.(271) If nothing is received within the sixty days, the adoptee will automatically obtain access to the records.(272)

A search must be conducted for all parties before an adoptee can gain acces to the records.(273) In some cases, there is a birthmother, birthfather, and legal father.(274) A legal father is involved when the birhtmother was married to someone else at the time of the child's birth.(275) In this case, the law requires the a doptee to search (and pay the searching fee) for the three people.(276) The adoptee can choose, however, to do one search at a time.(277) He or she may choose to search for the birthmother first.(278) If the birthmother is found and consents to a meeting, the birthmother may have information on the birthfather.(279) If so, the adoptee may be able to meet with the birthfather (if the birhtfather is amenable) and not need to inspect the adoption records for information.(280) If the birthmother is deceased or cannot be located, however, the unfortunate consequence is that the adoptee must search for the birthfather (and subsquently the legal father if he exists) and allow another 180 days for search time.(282) If the birthfather is deceased, cannnot be located, or gives consent, the adoptee may inspect the records.(282) If the birthfather wants confidentiality, the adoptee would then have access only to the information on the birthmother.(283)

For those adoptions occuring after December 31, 1990, family court sends letters to the birthparents at their last known addresses informing them of the requisite procedures to request confidentiality.(284) Family court has also instructed attorneys and placement agencies to advise the birthparents of these procedures before the child is placed for adoption.(285) Furthermore, all consents filed by birthparents on or after March 1, 1991 should include language confirming that the birthparents have been advised of the requisite procedures.(286) If affidavits requesting confidentiality are not received within the ninety days preceding the adoptee's eighteenth birthday, the adoptee may access the records.(287)

Because the amended law affords reciprocal rights to the adoptee, a letter explaining the requisite procedures to request confidentiality should be given to the adoptee before the adoptee's eighteenth birthday.(288) At the adoption hearing, the judge instructs the petitioners to gove a copy of the court's explanatory letter to the adoptee before the adoptee reaches eighteen.(289)

B. Initial Problems

Because of the different scenarios that may occur in a given case, family court personnel and searchers say it is difficult for adoptees to understand why the process takes so long and why they cannot give adoptees estimated timeframes.(290) Family court personnel and searchers cannot give estimated timeframes because of the many factors that come into play in any given case.(291) For example, timeframes depend on the quantity and kind of information in the records, the number of times a birthmother has renarried and changed names, the number of named parties in the file, the number of times the parties have relocated, how fast the found party responds to the notice, etc.(292)

When the new law took effect on January 1, 1991, there was an influx of applications.(293) Family court is still reeling from the backlog of this initial period.(292) Court personnel are not keeping detailed statistics so it is difficult to quatify the impact of the new law.(295) However, they estimate that before the law changed, they averaged less than twenty requests per month.(296) In the first month of the new law, they received about 121 requests.(297) The requests have tapered off now, but court personnel have not caught up with the initial backlog.(298) The first referrals were not sent to the searchers until seven months after the effective date of the law.(299) At this time, referrals to searchers are being sent out in batches approximately once every three to four months.(300)

C. How the Searches Are Working Out

According to one of the two designates family court searchers, about 500 cases have been assigned to the searchers as of July 1992.(301) About thirty-five percent of the applicants are daunted by the fees.(303) Others want to wait a while but eventually do decide to search.(304) Some applicants are daunted by the fees.(303) Others want to wait a while but eventually do decide to search .(304) Their case are left pending until they decide.(305) Some applicants decide they are satisfied with the nonidentifying information.(306)

Of the cases searched, an estimated eighty-seven percent are successfully completed.(307) In approximately five percent of the cases, the searches reveal the parties are deceased.(308) About thirteen percent are not located within the time limit, and about three percent are located but contact cannot be made.(309) The searcher may be unable to reach a person who does not have a phone or permanent address.(310) These persons are treated as if they were not located.(311) In some cases, the searcher's phone call is never returned.(312) In others, the party is incarcerated, and the searcher is unable to make personal contact.(313) If a party is not located, the applicant who subsequently inspects the records will see the searcher's report contained therein.(314) The report details the sources checked and the information found, if any, by the searcher.(315)

Approximately ninety percent of the cases are searches for birthparents.(316) Very few found birthparents ask for confidentiality.(317) The serarcher cannot accurately estimate the percentage of birthparents who want to remain confidential.(318) This is so because the searcher is not always told when the birthparent sends in a confidential affidavit.(319) Family courts personnel say they do not have the staff to keep statistics on the different consequences that may result from a given application.(320) Claudia Glienke, the searcher interviewed by the author, thought that most of the birthparents who were adamant about confidentiality probably sent in their affadavits within the first couple of months of the new law's existence.(321) In any event, Glienke estimates that less than five percent of the birthparents immediately relay (over the telephone) a desire to remain confidential.(322) Moreover, in the majority of the cases, after the initial shock wears off, the birthparents changes his or her mind.(323)

Glienke reported that the most typical reaction of a phone call to a birthparent is great joy, crying, and "This is the call I've been waiting for".(324) Most people know exactly what Glienke is calling about as soon as she identifies herself as a search agent for the family court.(325) Adoptees or birthparents who ask for assistance are referred to adoption support groups and helpful literature to aid them in coping with their emotions and frustrations.(326)

D. Future Concerns

Adoption reform advocates say further changes are needed to improve the adoption system.(327) One area of their concern is the practice of amending birth certificates.(328) Should the government condone the altering of documents? Is the purpose of amending the birth certificate to protect the adoptee or to protect the birthparents and adoptive parents from having to explain the origins of the adoptee?

Furthermore, adoption reform advocates are concerned about lack of representation of the child in adoption proceedings.(329) This problem is especially significant in independent adoptions where one attorney represents both the birthparents and adoptive parents.(330)

This author supports open records. Hovewer, because promises of confidentiality have been made in the past, for adoptions that occurred before the law changed, the compromise solution of seeking consent of the sought-after party seems fair. The registry system is not as effective as the search and consent system because it is too passive. Of course, this compromise legislation will not satisfy all parties. However, the legislature properly realized that there are alternatives to the all-or-nothing-approach. For adoptions occuring after the change in the law, it is not a burden to require birthparents who want to remain confidential to submit affidavits before the adoptee reaches eighteen.

Hawai'i did have an imbalance in favor of the confidentiality rights of the birthparent that required adjustment. Even though the use of the intermediary, the searcher, is an obstacle, the law is progressive because it allows actual inspection of records with the most personal of information, it applies retroactively, and it allows access even when the birthaprent is not located. Nonidentifying information should always be readily available, and the changed law makes this possible. Both the adoptee and the birthparent should have the opportunity to initiate a reunion, and the new law takes care of tht concern. The law does not require the adoptee or birthparent to "jump through more hoops" like forcing the parties to obtain counseling or to obtain adoptive parents' consent.

People have been trying for years to open adoption records in other states without success. I am amazed that Adoption Circle of Hawaii was able to get this legislation enacted upon their first try. Because of this legislation, the person who makes the final decision regarding the opening of sealed records is an involved party, not a disinterested judge, court official, or adoption agency. This legislation balances the desires of those who want to know with the rights of those who want to preserve confidentiality.

Regarding future concerns, I, too, question the importance of continuing the amended birth certificate tradition. By the time an adoptee understands the signifiance of a birht certificate, he or she will or should already know that he or she is adopted. Adoptees certainly know about ethnic or age disparities between their adoptive parents and themselves. The "falsification" of a birth certificate is a deception in the parent-child relationship. According to Hawai'i's rules, we must treat the birthparent as nonexistent or dead. Do we want a legal system that promotes fictional beliefs? On the other hand, the original birth cetificate does contain the birthparents' names and addresses. Minors, in all likelihood, do not have the psychological or emotional maturity to start or maintain relationships with birthparents. Teenagers should be provided with all of the nonidentifying information on their birthparents. However, they should not be given identifying information until they reach adulthood.

One thing I definitely would like to see is a change in the law to allow the aodptee to search for an adult adopted sibling. This change is important because, in some cases, both birthparents may be deceased. The adoptee's only link to birthfamily may be through an adopted sister or brother.

I agree with adoption reform advocates that the legislature should address concerns regarding the potential for black market abuses that go along with independent adoptions. Hawaii has not had a Joel Steinberg-type case yet.(331) We should not wait for this kind of tragedy to occur before taking action. In independent placements, a homestudy of the adoptive family is not required, and the family court judge does not have the data needed to make an informed decision on the placement of a child.

I am also concerned with an attorney's dual representation of the birthparents and adoptive parents in independent adoptions. Two separate attorneys should be employed. Or, at a minimum, a guardian ad litem should be appointed to represent the child in those cases.

In any event, although the means to acheiving the end continues to be disputed, I am glad that society has opened its eyes to the fact that some changes to adoption records laws must be made to correct the damage that prolonged secrecy has inflicted.(332) Removing the restraints on potential reunions does not force a reunion against a person's will. "Society can open records, but it can't legislate whether a door gets slammed or a welcome mat goes out".(333)

1 In re Maples, 563 S.W.2d 760, 767 (Mo. 1978) (Seiler, J., concurring).

2 Linda Hosek, Adoptees off From Roots, HONOLULU STAR-BULLETIN, Jan. 5, 1990, at A8.

3 Id.

4 I will refer to the genetic parents as "birthparents". Researchers and observers say that this is preferred over "natural parents" or "biological parents". "Natural parents" implies that the adoptive parents are the "unnatural " parents, understandingly resented by adoptive parents. "Biological parents" is a mechanical term, devoid of feeling. The term "birthparent" is accepted because it portrays with accuracy and sensitivity the birthparent's place in the adoptee's existence. ARTHUR D. SOROSKY, M.M. ET AL., THE ADOPTION TRIANGLE 50 (1978); JUDITH S. GEDIMAN & LINDA P. BROWN, BIRTHBOND XIX-XX (1989).

5 Hosek, supra note 2, at A8.

6 PAUL SACHDEV, UNLOCKING THE ADOPTION FILES 7 (1989).

7 GEDIMAN & BROWN, supra note 4, at 249.

8 Id.

9 RUTH G. MCROY ET AL., OPENNESS IN ADOPTION 3 (1988); see infra notes 67-68 and accompanying text.

10 Id.

11 SOROSKY et al., supra note 4, at 38.

12 Id. at 39.

13 Id.

14 Id.

15 Act 338, 1990 Haw. Sess. Laws 1036 (codified as amended at HAW. REV. STAT. §578-15 (Supp. 1991)).

16 Id.

17 SOROSKY et al., note 4, at 30. Apprenticeship was a form of unofficial adoption that provided training for a child so that he or she gained a vocation and a role in society. The apprenticeship system was also useful for dealing with orphaned children. Id at 29-30.

18 Id at 30.

19 Id.

20 Id.

21 Id.

22 JEANNE DUPRAU, Adoption 18 (1983).

23 Id.

24 Id.

25 Id. Some immigrants could not speak English and had to take whatever work they could find even if it paid almost nothing. Id.

26 Id. at 19.

27 Id.

28 Id.

29 Id. at 19-21.

30 Id. at 21-22.

31 Id. at 22.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 CAROL S. SILVERMAN, Regulating Independent Adoptions, 22 COLUM. J.L. & SOC. PROBS. 323, 326 (1989).

In independent adoptions, the birthparents retains legal rights to the child until court action takes place even after placement has been made to an adoptive family. In agency adoption, the birthparent relinquishes the child to the agency and surrenders all legal rights to the child before placement to an adoptive family is made. SOROSKY et al., supra note 4, at 34.

39 SOROSKY et al., supra note 4, at 35.

40 Id.; see also RUTH-ARLENE W. HOWE, Adoption Practice, Issues, and Laws 1958-1983, 17 Fam. L.Q. 173, 180-81 (1983).

41 SOROSKY et al., supra note 4, at 35.

In market adoptions, the priorities persent in a normal adoption are reversed. The welfare of the child and the birthmother and the fitness of the adoptive parents are subordinated to the profit of the black marketeer. The consent of the birthmother may not be truly voluntary. Adoptive parents need not show fitness for parenthood but rather that they can afford the fee. This promotes a system where the rich can adopt and the poor cannot. Note, Black -Market Adoptions, 22 cath. Law. 48, 50-51 (1976).

42 These risks include: the absence of preplacement home studies, the sale of the children for high fees, the possibility of a custody fight between the birthparents and adoptive parents before the adoption proceeding is completed, the chance that the birthmother may change her mind after the placement but before her rights have been terminated, and the possibility that the adoptive parents may not receive information on the child's background that might affect the child's health or development or the adoptive parent's willingness to rear the child. William meezan et al., Adoptions without agencies 26-32 (1978).

Another risk in independent adoptions is the risk that formal legal adoption might never be completed. In the highly publicized Joel Steinberg case, a six year old girl was beaten to death in 1987. The birthmother had given New York attorney Joel Steinberg $500 to arrange an independent adoption. Steinberg did not arrange the adoption but kept the baby in his home. Ricardo Lacayo, A Question of Responsability, Time, Feb. 13, 1989, at 68.

43 Howe, supra note 40, at 192. For example, a state could restrict fees, require reporting of fees, or limit the types of person who could participate in independent adoptions. Id.

Some states prohibited independent adoptions altogether. See, e.g., Florida, Fla. Stat. Ann. § 63.212 (West Supp. 1992).

44 SOROSKY et al., supra note 4, at 38.

45 Id. at 37; see also DUPRAU, supra note 22, at 101.

46 SOROSKY et al., supra note 4, 38; see also DUPRAU, supra note 22, at 101.

47 SOROSKY et al., supra note 4, 34. Adoptive parents often told the adoptee that the birthparents had died. Id. at 35.

48 Id. at 35-36

49 Id. at 36

50 Id.

51 Id.

52 Id. For a discussion on what adoptive parents are telling the adopted child today, see DUPRAU, supra note 22, at 64-67.

53 Notice of Report for Public Comment, 45 Fed. Reg. 33 (1980). The child Abuse Prevention and Treatment and Adoption Reform Act of 1978 mandated the creation of the panel to recommend model legislation relating to adoption. 42 U.S.C. § 5111 (1988).

54 Notice of Report for Public Comment 45 Fed. Reg. 33.

55 Id.

56 Id.

57 Relating to Adoption : Hearings on H.B. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Neil F. Hulbert, Esq.).

58 Josephine Horn, Adoption Customs in Old Hawaii, Paradise of the Pacific, Holiday Ed. 1948, at 23.

59 Id.

60 Id.

61 Id.

62 E.S. Craighill Handy & Mary K. Pukui, The Polynesians Family System In Ka-'u, Hawai'i 72 (1972).

63 SOROSKY et al., supra note 4, at 208.

64 Id. at 209

65 Alan Howard, et al., Traditional and Modern Adoption Patterns in Hawaii, in Contemporary Research In Social Psychology; A Book of Readings 21, 31 (Henry C. Lindgren ed., 1968).

66 Id. at 32.

67 Act of April 25, 1945, No. 40, § 2 1945 HAW. SESS. LAWS 301, 302 (codified as amended at Haw. REV. STAT. § 578-14 (Supp. 1991)). The Act stated that:

A certified copy of the decree of adoption shall be sent to the bureau of vital statistics of the board of health. Such bureau shall cause to be made a new record of the birth in the new name of the child with the names of the adoptive parents, and shall then cause to be sealed and filed the original birth certificate of the child with the decree of the judge, and such sealed package shall be opened only by order of the court.

Id.

68 Id. The Act of April 25, 1945 further provided that:

The records in adoption proceedings, after the petition is filed and prior to the entry of the decree, shall be open to inspection only by the parties or their attorneys, the director of the department of public welfare or his agent, or by any proper person on a showing of good cause therefor, upon order of court.

Id.

69 HAW. REV. STAT. § 578-15 (1985).

70 Id.

71 Id.

72 Id.

73 Id.

74 Relating to Adoption: Hearings on S.B. 2292 Before the House Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of former family court judge, Betty Vitousek). This procedure was in place from at least the early 1970s. Id.

75 Id.

76 Id.

77 Id.

78 Hawaii Institute for Continuing Legal Education, Hawaii Adoption Manual I-6 (1984).

79 Id.

80 See. e.g., Linda Hosek, Search for Parents is Hard, HONOLULU STAR-BULLETIN, Jan 5, 1990, at A8. In the incident described in the article, the adoptee, Jacqueline, "just expected to go in and ask for her records." Id.

81 Id.

82 Linda Hosek, Mothers Ask Open Records on Adoption, HONOLULU STAR-BULLETIN, Feb. 2, 1990, at A3.

83 Sachdev, supra note 6, at 1.

84 Gediman & Brown, supra note 4, at 250-51. This excerpt represents the views of the open records advocates.

85 DUPRAU, supra note 22, at 68.

86 Id.

87 Id.

88 Id. at 72

89 Id. For example, one adoptee explained:

[I]n second grade I knew that the family tree I had drawn as a homework assignment was a fraud. When I received my first physical exam in order to compete in junior high school sports, I knew there was no family medical history to be recorded. And in high school, when I was asked to determine the genetic probability of inheriting my parents' eye color, I knew that I didn't have the correct information to fit into formula.... these may seem trivial incidents, but they add up over a lifetime.

Relating to Adoption: Hearings on H.B. No. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg Sess (1990) (written testimomy of Laurel, an adoptee).

90 DUPRAU, supra note 22, at 73-74.

91 Id.

92 Id. at 75.

93 Id.

94 Id. at 86; see also Gediman & Brown, supra note 4, at 49.

It is important to note that the adoptee who has no known blood relatives does not know anyone who looks like him or her. The options available to an adoptee who wants to know someone who looks like himself or herself are to search for birth relatives or to have a baby. One researcher says that "[a]dopted youngsters, both male and female, may demonstrate a compulsive urge to procreate, thus providing them with their first contact with a blood relative." SOROSKY et al., supra note 4, at 113.

95 Sachdev, supra note 6, at 69.

96 See, e.g., Mills v. Atlantic Dep't of Vital Statistics, 372 A.2d 646, 649 (N.J. Super. Ct. Ch. Div. 1977). In Mills, the court noted that "[t]he child, who is the third and ultimately most important party to the adoption, has no voice in the proceedings. He or she is not represented as an individual by legal counsel. The child's only protection at the proceedings is the thoroughness of the report of the Division of Youth and Family Services and the perceptiveness of the presiding judge." Id.

97 Sachdev, supra note 6, at 12.

One expert discourages the adolescent adoptee from searching for birthparents because the adoptee is still too immature to put the entire experience into healthy perspective. SOROSKY et al., supra note 4, at 117.

Another expert, Betty Jean Lifton, thinks adopted children ought to know all the facts about themselves by the time they are thirteen. They should not necesarily meet their birthparents at that time, but she feels they might avoid a lot of the turmoil that adopted teenagers often suffer through if they have a better idea of who they are and where they come from. DUPRAU, supra note 22, at 107-108.

98 DUPRAU, supra note 22, at 83.

99 Id.

100 Id.

101 Id. at 84.

Many adoptees are curious about their birthparents during their childhoods, but they learn to suppress it, sensing the disapproval or hurt and anger of their adoptive parents. Some adoptees do not raise the subject fearing it might be interpreted as dissatisfaction with the adoptive home. Sachdev, supra note 6, at 82-83.

While all other questions are viewed as positive indications of intelligence, questions about birthparents are viewed sometimes as a comment on the adoptive parents' inadequacy as parents. SOROSKY et al., supra note 4, at 91.

102 DUPRAU, supra note 22, at 84.

103 Id. at 97.

104 Id. "Every reunion is good in the sense that it is useful, enabling adoptees to replace fantasy with reality, grieve if necessary, and then move on." Gediman & Brown, supra note 4, at 60.

The author of this commentary is an adoptee who, fortunately, did not have to go through the turmoil of searching for her birthmother. Upon reaching adulthood, the author began a relationship with her birthmother, and that relationship has answered many questions and changed the author's life in a positive way.

105 Lorraine Dusky, Birthmark 10-11 (1979).

106 This commentary focuses on birthmothers because historically it was the birthmother who made the decision to relinquish the child and whose consent was solicited. Furthermore, adoption records contain more information on the birthmother than the birthfather. More importantly, the literature shows that adoptees first search for their birthmothers before birthfathers. Sachdev, supra note 6, at 26.

See Gediman & Brown, supra note 4, at 165-83 for an insightful discussion on birthfathers. The rights of a putative father were largely ignored in the past, but the courts have begun to strengthen the prerogatives of the father to ensure the legality and finality of an adoption. For a good overview of recent cases on this topic, see National Committee For Adoption, 1989 Adoption Factbook 150-51 (1989) [hereinafter] Adoption Factbook].

107 Gediman & Brown, supra note 4, at 33.

108 Id. at 35-36. The effects of relinquishment are long-lasting. In the mid 1970s the first studies were published suggesting that birthmothers were not all proceeding satisfactorily with thier lives. For example, in a study of over 200 birthmothers in Australia, over half of the women reported an increasing sense of loss over periods up to thirty years. Id.

109 Sachdev, supra note 6, at 10.

110 SOROSKY et al., supra note 4, at 69.

111 Sachdev, supra note 6, at 55-56.

112 SOROSKY et al., supra note 4, at 53.

113 Id. at 53.

114 See Relating to Adoption: Hearings on S.B. No. 2292 Before the House Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimomy of Laurie Loomis. Esq., a private placement adoption atttorney). As this attorney explained:

A significant number of birth parents have in good faith relied on our law's guarantee of privacy.... Based on our experiences of our colleagues involved in both private and agency adoptions, there is no question that a good many are still relying on that guarantee of anonymity. While raising significant legal questions, the unfettered abridgment of that substantial privacy interest can be traumatic and, in some cases, cruelly disruptive of a birth parent's, or adoptee's, "new" life.

Id.

115 Adoption Factbook, supra note 106. at 108. "Regardless of people's religious or ethical convictions about abortion, if the only choice given women is between a confidential abortion or a non-confidential adoption, women will too often be compelled to choose confidential abortion. Confidential records give pregnant women greater freedom to choose adoption." Id.

116 Sachdev, supra note 6, at 11. But, birthmothers challenge this prediction that disclosure of identities could inhibit the decision of a large number of mothers to give up their children for adoption. Finland,

Scotland, and Israel do not have confidentiality statutes, and their adoptions is practised just as effectively. Id.

117 Humphers v. First Interstate Bank, 696 P.2d 527 (Or. 1985).

118 Id. at 533-36.

119 In re Maples, 563 S.W.2d 760, 763 (Mo. 1978).

120 Sachdev, supra note 6, at 56. This is an adoptive mother's statement.

121 Id. at 58. This is an adoptive mother's statement.

122 SOROSKY et al., supra note 4, at 83. This is an adoptive parent's statement.

123 Id. at 73.

124 DUPRAU, supra note 22, at 53.

125 SOROSKY et al., supra note 4, at 84.

126 Id. at 74.

127 Id.

128 Id. at 74-75.

129 Heidi A. Schneider, Adoption Contracts and the Adult Adoptee's Right to Identity, 6 Law & Ineq. J. 185, 221 (1988); see also SOROSKY et al., supra note 4, at 85-86.

As an adoptive mother said:

[A]dopted children, no matter how sturdy the family, will, simply as a function of being adopted, confront deep feelings of rejection , abandonment and unconnectedness that can derail healthy development unless parents are given the information they need to give honest answers about heritage and history, unless the system supports ease of contact with birth parents when children are ready.

Relating to Adoption: Hearings on H.B. No. 2089 Before the House Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimomy of Jean, an adoptive parent).

130 Sachdev, supra note 6, at 55-56.

131 One study found that 36.8% of the adoptive parents surveyed supported their prior consent as a condition for releasing identifying information to the adult adoptee. Id. at 60-61.

132 Id. at 63.

133 Id. In 1976, the Child Welfare League of America recommended that agencies alert adopting parents and birthparents that secrecy not be permanently guaranteed to them. Id. at 5; see also SOROSKY et al., supra note 4. at 44.

134 Klibanoff, Genealogical Information in Adoption: The adoptees Quest and the Law, 11 Fam L.Q. 196-97 (1977), quoted in In re Maples, 563 S.W.2d 760, 763 (Mo. 1978).

135 Susan E. Simanek, Comment, Adoption Records Reform: Impact on Adoptees, 67 Marq. L. Rev. 110, 124-125 (1983).

136 Id. at 124.

137 Sachdev, supra note 6, at 8: Schneider, supra note 129, at 224. However, the number of adoptions has not dramatically dropped in places like Great Britain, Finland, and Israel that have enacted open records laws, SOROSKY et al., supra note 4, at 224.

138 Simanek, supra note 135, at 124.

139 Id.

140 Id.

141 Id.142 Gediman & Brown, supra note 4, at 25-26.

143 Debra D. Poulin, The Open Adoption Records Movement: Constitutional Cases and Legislative Compromise, 26 J. Fam. L. 395, 396 (Winter 1987).

144 Id.

145 Linda F.M. v. Dep't of Health of New York, 418 N.E.2d 1302, 1304 (N.Y. 1981), appeal dismissed, Mason v. Abrams, 454 U.S. 806 (1981).

146 Id.

147 Id.; see also In re Roger B., 418 N.E.2d 751, 757 (III. 1981), appeal dismissed, Barth v. Finley, 454 U.S. 806 (1981); In re Assalone, 512 A.2d 1383, 1388-89 (R.I. 1986); Bradey v. Children's Bureau of South Carolina, 274 S.E.2d 418, 422 (S.C. 1981).

148 See discussion part II.B. In many cases, hovewer, needed medical information will not be found in the records. An adoptee in Hawai'i claims that if he had gained access to his birth records when he was 18 and been able to meet his birthmother, he would have found out that he was a likely candidate for diabetes and been able to fight his diabetes much sooner and more effectively. Relating to Adoption: Hearings on H.B. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Dan, an adoptee).

149 See, e.g. Chattman v. Bennett, 393 N.Y.S.2d 768, 768-69 (N.Y. App. Div 1977). In Chattman, the adult adoptee wanted to have children and was concerned about problematic genetic factors in her background. The New York court held that she had good cause to gain access to her medical information but not to the names of her birthparents. Id.

150 For example, an adoptee in need of bone marrow transplant was denied the names of his birthprents. A court administrator, however, was instructed to make confidential inquiries of the birthparents as to their willingness to determine the critical medical facts concerning suitability for donation of bone marrow. In re George, 625 S.W.2d 151, 159-61 (Mo. Ct. App. 1981).

In another case, an adoptee, a commercial pilot, was laid off until he could find medical history from his birthparents to explain his heart attack. The court denied access, rationalizing that "[a] rule which automatically gave full disclosure to any adopted person confronted with a medical problem with some genetic implications would swallow New York's strong policy against disclosure as soon as adopted people approached middle age." Golan v. Louise Wise Services, 507 N.E. 2d 275, 279 (N.Y. 1987).

151 E.g., Massey v. Parker, 369 So. 2d 1310, 1314 (La. 1979) (finding no compelling necessity for plaintiff to see the sealed records, but a compelling reason for the court to examine the records to determine whether plaintiff had inheritance rights).

152 E.g., In re Gilbert, 563 S.W.2d 768, 770 (Mo. 1978) (holding adoptee who alleged that fundamental belief of his Mormon religion inspired him to inspect the records should be given the opportunity to present evidence on that issue).

153 E.g., In re Lay, 382 So. 2d 814, 815 (Fla. Dist. Ct. App. 1980) (holding Florida law did not prohibit the release of information on siblings from adoption records but left it up to judicial discretion whether good cause was shown to open up the records).

154 See, e.g., In re Estate of McQuesten, 578 A. 2d 335, 339 (N.H. 1990) ("If all of the parties to the adoption give their consent to unsealing the adoption records... the State still has interest in continued confidentiality."); Golan v. Louise Wise Services, 507 N.E.2d 275, 278 (N.Y. 1987) ("Even in the face of consent by all parties, the court must independently 'satisfy itself that good cause' for disclosure has been shown and possible limitations on the use of the information have been explored before allowing access.")

155 See, e.g., In re Maples, 563 S.W.2d 760, 764 (Mo. 1978).

In Maples, the court stated:

[T]he adoptee has prospered socially, intellectually and financially as the child of her adopting parents and has recently married.... In addition, it should be stated that adoptive parents need and deserve the child's loyalty as they grow older and particularly in their later years. The stature promotes a posture from which the child's attention and emotional attachments are directed toward the relationship with the new parents and so it should be.

Id. (emphasis added).

156 601 F.2d 1225 (2d Cir. 1979), cert. denied, 444 U.S. 995 (1979).

157 Id. at 1230. The court characterized this assserted right as the right to "personhood." Id. at 1231. The relevant section of the Fourteenth Amendment states:

No state shall make or enforce any law which shall abridge the priviliges 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.

U.S. Const. Amend. XIV, § 1.

158 601 F.2d at 1231.

159 Id. at 1233

160 Id. 1230. The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws" U.S. Const. Amend. XIV, § 1.

161 601 F.2d at 1233-34. For an analysis of this constitutional challenge, see Marilee C. Unruh, Comment, Adoptees Equal Protection Rights, 28 UCLA L. Rev. 1314, 1332 (1981).

162 Unruh, supra note 161, at 1332 (citing Loving v. Virginia, 388 U.S. 1 (1967); In re Griffiths, 413 U.S. 717 (1973); Korematsu v. United States, 323 U.S. 214 (1994)).

163 Id. at 1332-33 (citing Craig v. Boren, 429 U.S. 190 (1976)).

164 601 F.2d at 1233.

165 Id. at 1234. The court said that discrimination against illegitimates is scrutinized because of the "injustice of stigmatizing a child in order to express disaproval of the parents' liaisons." Id. This is less applicable to discrimination against adoptees. Id. Moreover, adoptees "are not generally subject to extensive legal disabilities and thus have less of a claim to judicial protection than illegitimates." Id.

166 Id. See Unruh, supra note 161, at 1334-61, for arguments concluding that adoptees are a quasi-suspect class and that the good cause requirements are not constitutional.

167 601 F.2d at 1230. The Thirteenth Amendment to the United States Constitution provides:

Section 1. Neither slavery nor involuntary servitude...shall exist within the United States....

Section 2. Congress shall have power to enforce this article by appropriate legislation.

U.S. Const. Amend. XIII.

168 601 F.2d at 1237.

169 Id.

170 Id.

171 Id.

172 Id. at 1237.

173 Id. at 1238. See Poulin, supra note 143, at 407-409 for an analysis disagreeing with the ALMA court's conclusions regarding the Thirteenth Amendment.

174 In re Maples, 563 S.W.2d 760 (Mo. 1978).

175 Id. at 760-61.

176 Id. at 762.

177 Id.

178 Id.

179 Poulin, supra note 143, at 410.

180 See infra part IV.C. for description of this option.

181 Alaska Stat. § 18.50.500 (Supp. 1991); Kan Stat. Ann. § 65-2423 (Supp. 1991). Alabama had the same open records law but repealed it in 1990 and now has a search and consent law. Ala. Code § 26-10A-31 (Supp. 1992).

182 Poulin, supra note 143, at 412.

183 Upon perusal of Hawaii birth certificate, one can find the following information: (1) child's name; (2) hospital or facility name; (3) date of birth; (4) city, town or location of birth; (5) time of birth; (6) sex of child; (7) attendant's name; (8) mother's name; (9) mother's age at this birth; (10) mother's state of birth; (11) whether mother was active in the U.S. military; (12) mother's residence; (13) mother's mailing address: (14) father's name; (15) father's age at this birth; (16) father's state of birht; (17) whether father was active in the U.S. military; (18) race of mother and father. Included in the birth certificate form are the items required by the Public Health Service, National Center for Health Statistics, subjects to modification by the State's Department of Health. HAW. REV. STAT. § 338-11 (1985).

184 Poulin, supra note 143, at 412.

185 Id.

186 Id. Some registrery statutes allow adoptive aprents and siblings of the adoptee to register. Id. at 413.

187 Adoption Factbook, supra note 106, at 44.

188 Poulin, supra note 143, at 413.

189 Id. at 414.

190 Arkansas, Ark. Code Ann. § § 9-9-501-508 (Michie 1991); California, Cal. Civ. Code § 229.40 (West Supp. 1992); Colorado, Colo. Rev. Stat. § 25-2-113.5 (Supp. 1992): see also Colo. Rev. Stat. § 19-5-304 (Supp. 1992) (search and consent stature); Connecticutt, Conn. Gen. Stat. § 45a-755 (1991); see also Conn. Gen. Stat.45a-751 (1991) (search and consent statute); Florida, Fla. Stat. Ann. § 382.027 (West Supp. 1992); Georgia, Ga. Code Ann. § 19-8-23 (Michie 1991) (also provides for search and consent procedures); Idaho Code § 39-259A Supp. 1992); Illonois, Ill. Ann. Stat. Ch. 40, ¶ 1522.1 (Smith-HUrd Supp. 1992); see also Ill. Ann. Stat. Ch. 40, ¶ 1522.3a (Smith-Hurd Supp. 1992) (search and consent statute); Indiana, Ind. Code Ann. § 31-3-4-28 (Burns Supp. 1992); Louisiana, La. Children's Code Ann. Art. 1270 (West 1992); Maine, Me. Rev. Stat. Ann. tit. 22, § 2706-A (West 1992); Maryland, Md. FAM. LAW CODE ANN. § 5-4A-01-07 (Supp. 1991); Massachussets, MASS. ANN. LAWS ch. 210, § 5D (Law. Co-op 1992); Michigan, MICH. COMP. LAWS ANN. § 710.27 (West Supp. 1992); Missouri, Mo. ANN. STAT. § 453.121 (Vernon Supp. 1992) (also provides for search and consent procedures); Nebraska, NEB. REV. STAT. Id. 43-119 to -146.13 (Supp 1990) (also provides for search and consent procedures); Nevada, NEV. REV. STAT. §127.007 (1991); New Hampshire, N.H. REV. STAT. ANN § 170-B:19 (1990 and Supp. 1991) New York, N.Y. PUB HEALTH LAW §§ 4138b-4138d (McKinney 1985 & Supp. 1992); Ohio, OHIO REV. CODE ANN. § 3107.41 (Anderson Supp. 1991); Oregon, OR. REV. STAT. § 109.425-.500 (1991); South Carolina, S.C. CODE ANN. § 25-6-15 (Supp. 1992); Texas, TEX. HUM. RES. CODE ANN., § 49.001-.023 (West 1990); Utah, UTAH CODE ANN. § 78-30-18 (Supp. 1992); West Virginia, W. VA CODE § 48-4A-1-8 (1992).

191 Colorado, COLO. REV.STAT. § 19-5-304 (Supp. 1992); Connecticut, CONN. GEN. STAT. § 45a-751 (1991); goergia, GA. CODE. ANN. § 19-8-23 (Michie 1991); Illinois, ILL.ANN.STAT. ch. 40 ¶ 1522.3a (Smith-Hurd Supp. 1992); Missouri, MO ANN. STAT. § 453.121 (Vernon Supp. 1992); Nebraska, NEB. REV. STAT. §§ 43-119 to - 146.13 (Supp. 1990).

See infra IV.C. for a description of search and consent statutes.

192 Adoption Factbook, supra note 106, at 44.

193 Id.

194 Gediman & Brown, supra note 4, at 251. See, e.g., Arkansas' counseling requirement:

Upon registering, the registrant shall participate in not less than one (1) hour of counselling with a social worker employed by the entity tha operates the registry; if a birth parent or adult adoptee is domiciled outside the state, he shall obtain counselling from a social worker employed by a licensed agency in that other state selected by the entity that operates the registry.

Ark. Code Ann. § 9-9-504(b)(1) (Michie1991).

195 Gediman & Brown, supra note 4, at 251.

196 Id.

197 Id.

198 See, e.g., Ind. Code Ann. § 31-3-4-28 (Burns Supp. 1992).

199 See, e.g., Tex. Hum. Res. Code Ann. § 49.016 (West 1990).

200 Id. § 49.017.

201 Poulin, supra note 143, at 415.

202 Id.

203 Id.

204 Id. The requirement of personal and confidential contact is included to make sure that the birthparent's privacy is respected. Some states do not even allow contact by mail. See, e.g., Minn. Stat. Ann. § 259.49 (West Supp. 1992).

205 Poulin, supra note 143, at 415.

206 Alabama, ALA. CODE § 26-10A-31 (Supp. 1992); Arizona, ARIZ.REV. STAT. ANN. § 8-134 (Supp. 1992); Colorado, COLO. REV. STAT. § 19-5-304 (SUPP. 1992); see also COLO. REV. STAT. § 25-2-113.5 (Supp. 1992) (registry stature); Connecticut, CONN. GEN. STAT. § 45a-751 (1991): see also CONN. GEN. STAT. § 45a-755 (1991) (registry statute); Georgia, GA. CODE ANN. § 19-8-23 (Michie 1991) also provides for registry procedures); Hawaii, HAW. REV. STAT. § 578-15 (Supp. 1991); Illinois, ILL. ANN. STAT. Ch. 40, ¶ 1522.3a (Smith-Hurd Supp. 1992); see also ILL. ANN. STAT. ch. 40, ¶ 1522.1 (Smith-Hurd Supp. 1992) (registry statute); Kentucky, KY. REV. STAT. ANN. § 199.572 (Baldwin 1992); Minesota, MINN. STAT. ANN. § 259.49 (West Supp. 1992); Missouri, MO. ANN. STAT. § 453.121 (Vernon Supp. 1992) (Also provides for registry procedures); Nebraska, NEB. REV. STAT. § 43-119 to -146.13 (Supp. 1009) (also provides for registry procedures); North Dakota, N.D. Cent. CODE § 14-15-16 (1991); Pennsylvania, 23 PA. CONS. STAT. ANN. § 2905 (1991); Tennessee, TENN. CODE ANN. § 36-1-141 (1991; Washington, WASH. REV. CODE ANN. § 26.33.343 (West Supp. 1992); Wisconsin, WIS. STAT. ANN. § 48.433 (West 1987 ans Supp. 1991); Wyoming, WYO. STAT. §§ 1-22-201 to -203 (Supp. 1991).

207 Colorado, COLO. REV. STAT. § 19-5-304 (Supp. 1992); Connecticut, CONN. GEN. STAT. § 45a-751 (1991); Georgia, GA. CODE ANN. § 19-8-23 (Michie 1991); Illinois, ILL. ANN. STAT. Ch. 40, ¶ 1522.3a (Smith-Hurd Supp. 1992); Missouri, MO. ANN. STAT. § 453.121 (Vernon SUPP. 1992); Nebraska, NEB. REV. STAT. §§ 43-119 to -146.13 (Supp. 1990).

208 See, e.g., Conn. Gen. Stat. § 45a-751 (1991).

[T]he agency or departemnt ... shall furnish the information [] unless the consents required ... are not given or unless the agency or the department ... determines at any time that the release of the requested information would be seriously disruptive to or endanger the physical or emotional health of the adult adopted or adoptable person or the person whose identity is being requested.

Id.

209 Minn. Stat. Ann. § 259.49 (West Supp 1992)

210 Wash. Rev. Code Ann. § 26.33.343 (West Supp. 1992).

211 For example, the Missouri statute says that for adoptions completed before August 13, 1986, the adoptive parents shall be notified of a request for identifying information is received from the adoptee. If the adoptive parents do not give their consent, the agency makes a "written report to the court stating that they were unable to notify the biological parent." Mo. Ann. Stat. § 453.121 (Vernon Supp. 1992).

212 Sue L. Villani, A search for Roots, Midweek, Feb 19, 1992, at A6.

213 The then president of ACH testified :

Simultaneous with the closing of adoption records in Hawaii, governements of the world-spearheaded by Eleanor Roosevelt-adopted the Universal Declaration of Human Rights. This declaration has been the basis for the development of human rights groups worlwide. Article 25, in part, states "all children, whether born in or out of wedlock, shall enjoy the same social protection."Within the system, adopted individuals are denied the social protection of access to birth heritage.

Relating to Adoption: Hearings on H.B. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Dan Fargo, President, Adoption Circle of Hawaii).

214 Hosek, supra note 82, at A3: Linda Hosek, Adoptees Plead for Open Records, HONOLULU STAR-BULLETIN, Feb. 14, 1990, at A6. The testimonies presented basically the same arguments given in part III.A of this commentary in discussing perspectives of the parties.

215 See Relating to Adoption: Hearings on S.B. 2292 Before the House Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Kate Burke), President, American Adoption Congress); Relating to Adoption: Hearings on S.B. 2292 Before the House Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Sara L. Smith, Hawaii Women Lawyers); Relating to Adoption : Hearings on S.B. 2292 Before the House Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Social Workers, Inc., Hawaii Chapter); Relating to Adoption : Hearings on S.B. 2292 Before the House Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Livia Wang, Native Hawaiian Legal Corporation); Relating to Adoption : Hearings on S.B. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of the Office of Hawaiian Affairs); Relating to Adoption : Hearings on H.B. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of the Office of Hawaiian Affairs); Relating to Adoption : Hearings on H.B. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Terri Needels, PhD., Hawaii Psychological Association); and Relating to Adoption : Hearings on H.B. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of Mark D. Stitham, M.D., Hawai Psychiatric Society).

The Office of Hawaiian Affairs ("OHA") noted that it his the responsability of improving the lives of those of Hawaiin ancestry. For Hawaiians to qualify for OHA benefits of trust entitlements, they must verify that they have fifty percent or more Hawaiian blood quantum. With the sealed adoption records law, Hawaiian adoptees have a difficult time proving even ethnicity, much less percentages. Other agencies that require proof of Hawaiian ancestry to qualify for benefits are the Kamehameha Schools/Bernice Pauahi Bishop Estate, Queen Liliuokalani Trust, King Lunalilo Trust, Alu Like, Inc., Native Hawaiian Legal Corporation, and other federal health, education, and social programs. Relating to Adoption: Hearings on H.B. 2089 Before the Senate Committee on Judiciary, 15th Leg., Reg. Sess. (1990) (written testimony of the Office of Hawaiian Affairs).

216 Relating to Adoption: Hearings on S.B. 2292 Before the House Committe on Judiciary, 15th Leg., Reg. Sess (1990) (written testimony from the National Committee for Adoption).

217 E.g., Testimony of Laurie Loomis, supra note 114.

218 Linda Hosek, Adoption Measure Moves Ahead, Honolulu Star-Bulletin, April 7, 1990, at A8.

219 Winona Rubin, Director of the Department of Human Services said:

While we acknowledge the compelling need "to know", we believe there is an equally compelling need "to remain unknown" by some parties and believe they need to be able to participate in the decision to release identifying information.

Hosek, supra note 82, at A3.

220 15th Leg., 1990 Reg. Sess., Haw. H.R.J. 656 (1990).

221 Adoption Files Let's Consult Birth Parents First, Honolulu Advertiser, Feb. 11, 1990 at B2 (suggesting requirement of consent from birthparents if a request is received from an adoptee); Adoptee's Rights, HONOLULU STAR-BULLETIN, Jan. 22, 1990 at A10 (suggesting creation of a state board to review requests by adoptees for access to their birth records).

222 Linda Hosek, Adoption Bill Supporters Hail Conferees' Accord, HONOLULU STAR-BULLETIN, April 25, 1990, at A4.

Despite this compromise, oppenents such as the NCFA criticized the proposal saying, among other things, that it would: (1) make a mockery of the covenants the State previously entered into; (2) violate the parties' constitutional privacy rights; (3) entail exorbitant costs on terms of the cost of the search, the cost of defending constitutional challenges to the law, and the cost of defending the State against lawsuits; (4) put too much of a burden on birthparents to repeatdly insist on anonymity; and (5) have chilling effect on adoptions. Testimony of NCFA, supra note 216.

Regarding the privacy rights that NCFA mentionned, Hawaii's Constitution expressly recognizes the right of privacy:

The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.

Haw. Const. Art. I., § 6.

223 Act 338, 1990 HAW. SESS. LAWS 1036 (codified as amended at HAW. REV. STAT. § 578-15 (Supp. 1991)).

224 Stu Glauberman, Conferees Reach Agreement on Adoption Records, Honolulu Advertiser, April 25, 1990 at A8.

225 HAW. REV. STAT. § 578-15(b)(2) (Supp. 1991). Adoption records can also, as before, be opened by court order upon a showing of good cause. Id.

226 The original Act 338 of 1990 stated a 30-day period. Act 338, 1990 HAW. SESS. LAWS 1038 (codified as amended at HAW. REV. STAT., § 578-15 (Supp. 1991)). This was changed to a 60-day period during the 1991 legislative session. Act 45, 1991 HAW. SESS. LAWS 124 (codified as amended at HAW. REV. STAT. § 578-15 (Supp. 1991)).

227 The original Act 338 of 1990 provided for registerd mail. Act 338, 1990 HAW. SESS. LAWS 1038. Because of the higher costs involved with using registered mail, this provision was changed to certified mail during the 1991 legislative session. Act 45. 1991 Haw. Sess. Laws 124.

228 HAW. REV. STAT.. § 578-15(b)(2)(A) (Supp. 1991).

229 Id.

230 Id.

231 § 578-15(b)(2)(B).

232 § 578-15(b)(2)(C).

233 Id. In the original Act 338 of 1990, the search time limit was 120 days. Act 338, 1990 HAW. SESS. LAWS 1038. This was changed to 180 days during the 1991 legislative session. Act 45, 1991 HAW. SESS. LAWS 125.

234 HAW. REV. STAT. § 578-15(b)(2)(C) (Supp. 1991).

The original Act 338 of 1990 stated that contacts with natural parents shall be personal and confidential and shall not be made by mail. Act 45, 1991 Haw. Sess. Laws 125.

235 HAW. REV. STAT. § 578-15(b)(2)(D) (Supp. 1991).

236 Id. § 578-(b)(2)(E).

237 Id. § 578-15(b)(2)(F).

238 Id.

239 Id. § 578-15(b)(2)(G).

240 Id. § 578-15(b)(2)(H).

241 The original Act 338 of 1990 said the "family court shall inform each natural parent of the procedures required under this paragraph if the natural parent desires to maintain confidentiality after the adopted individual attains the age of eighteen". Act 338, 1990 HAW. SESS. LAWS 1039. This was changed during the 1991 legislative session. Act 45, 1991 HAW. SESS. LAWS 125-26.

Family court will not be held responsible for informing the birthparents of the procedures for maintaining confidentiality because in most cases, placement of the child occurs many months before the court hearing. By the time the court haering takes place, the birhtparents usually have moved, and the court id unable to contact them. Relating to Family Court: Hearings on S.B. 600 Before the Senate Committee on Judiciary, 16th Leg., Reg. Sess (1991) (written testimony of Marjorie H. Manuia, District Family Judge, Family Court, First Circuit).

242 HAW. REV. STAT. § 578-15(b)(3)(A) (Supp. 1991).

243 Id. § 578-15(b)(3)(B).

244 Id.

245 Id.

246 Id. § 578-15(b)(3)(C).

247 Id. § 578-15(b)(3)(D).

248 Id. § 578-15(b)(4).

249 Id. § 578-15(b)(5).

250 Id. § 578-15(b)(6).

251 In the bill that passed (H.B. No. 2089), the judiciary was appropriated $100,000 to administer the program. Act 338, 1990 Haw. Sess. Laws 1040.

252 Telephone Interviewers with Darlene Yamauchi, Family Court Attorney, and Susan Jong, Family Court Clerk (Aug. 27, 1992 and Sept. 14, 1992).

253 Id.

254 Id.

255 Id.

256 Id.

257 Id.

258 Id.

259 Id.

260 Id.

261 Id.

262 Id.

263 Id. The details regarding the designated searchers' services for family court were worked out when their contracts were drafted. Telephone Interviewers with Darlene Yamauchi, supra note 252.

264 Telephone Interviewers with Claudia Glienke, Family Court Searcher (Sept. 18, 1992).

265 Id.

266 Id.

267 Id.

268 Id.

269 Id.

270 Id.

271 Id.

272 Id.

273 Id. Note, however, that information cannot be given out on other adopted siblings, Id.

274 Id.

275 Id.

276 Id.

277 Id.

278 Id

279 Id.

280 Id.

281 Id.

282 Id.

283 Id.

284 Memorandum from Daniel G. Heely, Chairperson, Board of Senior Family Court Judges and Directors, to All Family Law Attorneys and Placement Agencies (December 18, 1990) (on file with author).

285 Id.

286 Id.

287 Id.

288 Id.

289 Id.

290 Telephone Interviews with Darlene Yamauchi and Susan Jong, supra note 252; Telephone Interview with Claudia Glienke, supra note 264.

291 Id.

292 Id.

293 Id.

294 Id.

295 Id.

296 Telephone Interview with Susan Jong, supra note 252.

297 Id.

298 Id

299 Telephone Interview with Claudia Glienke, supra note 264.

300 Telephone Interview with Susan Jong, supra note 252.

301 Telephone Interview with Claudia Glienke, supra note 264.

302 Id.

303 Id.

304 Id

305 Id

306 Id

307 Id

308 Id

309 Id.

310 Id.

311 Id.

312Id.

313 Id.

314 Id.

315 Id.

316 Id.

317 Id.

318 Id.

319 Id. Only in some cases will an adoptee call the searcher to let the searcher know what happened. Id.

320 Telephone Interview with Darlene Yamauchi, supra note 252.

321 Telephone Interview with Claudia Glienke, supra note 264.

322 Id.

323 Id.

324 Id.

325 Id. A note about birthfathers: Sometimes birthfathers did not even know they had a child. At other times, birthfathers have told the searcher that they had tried to get custody of the child but were unsuccessful. Id.

326 Id.

327 Interview with Laurel Johnston Mitchum, former president of Adoption Circle of Hawaii, in Honolulu, Haw. (Sept. 15, 1992).

328 Id.

329 Id.

330 Id.

331 See supra note 42 for discussion of Joel Steinberg case.

332 One commentator has observed:

Secrets are powerful agents, and we sense their mystery, attraction, and danger even from early childhood. As adults, we all know from experience that to keep a secret requires a healthy dose of will power; that keeping a secret can make us feel guilty, duplicitous, or unauthentic; and that, over a long period of time, it can have a powerful influence on character and personality.

Gediman & Brown, supra note 4, at 13.