Statement of Robert C. Robinson, Esquire
Commissioner, National Conference of Commissioners on Uniform State Laws

Testimony Before the Subcommittee on Human Resources
of the House Committee on Ways and Means

Hearing on Adoption Reunion Registries and Screening of Adults Working with Children

June 11, 1998

Mr. Chairman and other Honorable Members of this Committee:

I am deeply honored to have been given the opportunity to testify here today before this Honorable Committee.

My name is Robert C. Robinson and I am currently a Commissioner of the National Conference of Commissioners on Uniform State Laws, having first been appointed by the Governor of the State of Maine in 1976 and reappointed by several other Governors for the next 21 years.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) was first formed in 1889 by the New York Bar Association which appointed a special commission on uniformity of law. In the next year, the New York Legislature authorized the appointment of Commissioners "to examine certain subjects of national importance that seemed to show conflict among the laws of the several commonwealths, to ascertain the best means to effect an assimilation of uniformity in the laws of the states, and especially whether it would be advisable for the State of New York to invite the other states of the Union to send representatives to a convention to draft uniform laws to be submitted to approval and adoption by the several states." In that same year, the American Bar Association passed a resolution recommending that each state provide for Commissioners to confer with the Commissioners of other states on the subject of uniformity of legislation on certain subjects. In August, 1892, the first National Conference of Commissioners on Uniform State Laws (ULC) convened in Saratoga, New York, three days preceding the annual meeting of the American Bar Association. There have been 105 Conferences since that time.

By 1912, every state was participating in the ULC. In each year of service, the ULC has steadily increased its contribution to state law. Because of that contribution, it very early became known as a distinguished body of lawyers. The ULC has attracted some of the best of the profession. In 1912, Woodrow Wilson became a member. This, of course, was before his more notable political prominence and service as President of the United States. Several persons, later to become Justices of the Supreme Court of the United States, have been members. These men are former Justices Brandeis and Rutledge, and current Chief Justice Rehnquist. Legal scholars have served in large numbers. Examples are Professors Wigmore, Williston, Pound, and Bogart. A great many distinguished lawyers have served since 1892, though their names are not as well known in legal affairs and the affairs of the United States. This distinguished body has guaranteed that the products of the ULC are of the highest quality and are enormously influential upon the process of the law. As it has developed in its 106 years, the ULC is a confederation of state interests. It arose out of the concerns of state government for the improvement of the law and for better interstate relationships.

The National Conference is convened as a body of the whole once a year. It meets for a period of eight to twelve days, usually in the first two weeks of August. In the interim period between the annual meetings, drafting committees composed of Commissioners meet to supply the working drafts which are considered at the annual meeting. At each National Conference, the work of the drafting committees is read and debated. Each Act must be considered over a substantial period of years. No Act becomes officially recognized as a Uniform Act until the National Conference is satisfied that it is ready for consideration in the state legislatures. It is then put to a vote of the states, during which each state caucuses and votes as a unit.

The governing body is the ULC Executive Committee, and is composed of the officers, certain ex-officio members, and members appointed by the President of the ULC. Certain activities are conducted by standing committees. For example, the Committee on Scope and Program considers all new subject areas for possible Uniform Acts. The Legislative Committee superintends the relationships of the ULC to the state legislatures.

The ULC maintains relations with several sister organizations. Official liaison is maintained with the American Bar Association, which contributes an amount each year to the operation of the ULC. Liaison is also maintained with the American Law Institute, the Council of State Governments, and the National Conference of State Legislatures on an ongoing basis. Liaison and activities may be conducted with other associations as interests and activities necessitate.

In March of 1989, the ULC formed a Study Committee to see if any action should be taken to improve the law of Adoption in the several states. The Study Committee recommended that a Drafting Committee be formed to redraft a new Adoption Act. I served as co-chairman of that Drafting Committee of the Uniform Adoption Act (UAA). After five years of research and intensive debate at which all persons and organizations having an interest were encouraged to participate, NCCUSL completed the Uniform Adoption Act (UAA) at its 1994 Annual meeting. The recently completed UAA was enthusiastically endorsed by the American Bar Association early in 1995.

Adoption is entirely a statutory procedure governed entirely by state laws in all of the several states established for the first time in 1851 in Massachusetts. The subject is one about which everyone has at least some opinion based upon their own participation and association with their own family. The issues all deal with individuals and intimate human relationships and are complex and the governance, therefore, can be controversial, especially when almost the entire populace have opinions as to what the law should be.

NCCUSL, having over 100 years of experience in creating and drafting state laws, spent five years with the services of 300 lawyers in research, analysis, debate and compromise in drafting an Adoption Act for the several states. This proposed legislation, so carefully crafted, was intended to resolve the many problems associated with adoption and bring to the several states a uniform law that would serve the best interests of children in the creation of new families.

The completed Adoption Act did receive a ringing endorsement from the ABA and is expected, over time (which is the history of Uniform Acts), to be gradually adopted by most of the several states. At the outset, the states will adopt individual critical sections of the Act and gradually will incorporate most, if not all, of the Act as the merit and value of the proposed legislation becomes apparent through gradual use of its parts.

Of the many controversial issues, those that involved the most vigorous and time- consuming debate in the creation of the Adoption Act were whether to preserve the tradition of privacy and confidentiality of records. These specific issues provided the major thrust of the debate over the entire five years. A thoughtful, moderate, middle-of-the-road compromise which received solid support from the Committee of the Whole as well as from the Drafting Committee provided for a mutual consent registry to be established in every state whereby both identifying and nonidentifying information may be made available through the carefully crafted terms and provisions of the mutual voluntary consent registry made a part of the Adoption Act. Hopefully, the Uniform Adoption Act including its letter perfect mutual voluntary consent registry provision will ultimately be accepted in each of the several states.

In the meantime, however, it is to be acknowledged that 48 of the states currently have some form of system in place that people seeking identifying information may use. The District of Columbia, New Jersey (for non-public agency placements) and North Carolina are the exceptions. Not all of the existing laws at the present time are the same, nor are all the laws adequate in every respect, but all do provide what each state currently deems appropriate for dealing with the rights and interests of adoptees and their adoptive parents in their respective states. Most, if not all, of these systems are set up and governed by thoughtful, conscientious staff. Some are within the Department of Vital Statistics and others are within the Department of Human Services, but all follow strict guidelines commensurate with the governing legislation in their particular State and all but Alaska, Kansas and Tennessee seem proud to preserve the pole star around which the adoption process revolves, i.e., to protect the covenant guaranteed of privacy and confidentiality of records. Some have this assurance to a greater degree than others, but all systems are carefully guarded within the guidelines set out in their respective State statutes.

To superimpose in this network yet another, duplicate regulatory procedure in the form of a federal program for a mutual consent registry cannot be but confusing and a source of frustration for those seeking relief and security.

In its present configuration the "National Voluntary Mutual Reunion Registry" S1487 contains certain terms and provisions which are equivocal at best and harmful at worst. Reference is made to Section 479(A)(a)(1) of the proposed Act as follows:

(a) EXCHANGE OF MUTUALLY REQUESTED IDENTIFYING INFORMATION - The Secretary, in the discretion of the Secretary and provided there is no net cost to the Federal Government, may use the facilities of the Department of Health and Human Services to facilitate the voluntary, mutually requested exchange of identifying information that has been mutually consented to, by an adult adopted individual who is 21 years of age or older with-

(1) any birth parent of the adult adopted individual; or

(2) any adult sibling who is 21 years of age or older, of the adult adopted individual

I have some personal reservations which are not necessarily those of NCCUSL, concerning the unrestricted use of the "any birth parent" and "any adult sibling" language believing it could set the stage for serious consequences. This "any birth parent" language could produce a disaster under certain circumstances. Consider the problems that would result if a non-consenting biological mother were confronted, post adoption, by the biological father whose parental rights had been terminated or whose conduct or lack of conduct did otherwise deprive him of status in the triad. The condition produced by this language is the antithesis of the protection and security contemplated by any mutual consent registry system.

In (a)(2), an adult sibling of the adoptee, without qualification other than age, is given unwarranted status in this Act to encroach upon the rights of an unconsenting biological mother by obtaining identifiable information, thus denying said mother from the guarantees as set forth in (B) and (C) herein and further does violence to the covenant of confidentiality offered to the biological mother at the time of her consent or relinquishment of her child for adoption. You can rest assured that the children born to their mother and father, who are full siblings, cannot by mutual agreement access their parents medical records.

There may also be unforseen problems with the following section even though the proposed Act attempts to assuage the States that the Federal Government intends to be friendly.

"(e) NO PREEMPTION - Nothing in this section invalidates or limits any law of a State or of a political subdivision of a State concerning adoption and the confidentiality of that State's sealed adoption record policy."

Ordinarily, a section of a law as set forth above, promulgated by the Federal Government which addresses the same issues set forth in a state statute takes precedence over the state statute which must yield to the Federal law. There is some precedent under unique circumstances, however, for the Federal Government to declare the preeminence of a state statute in a matter in which the Federal Government perceives there to be an advantage to do so. It is rare, however, and probably will require a hearing and an interpretation of the unusual turn of events brought about by this preemption clause proposed in this Act by the Federal Government. It is not entirely clear under these circumstances that the impression being created by this unusual declaration of preemption by the Federal Government would not add substantially to the confusion of this uncharacteristic position taken by the Congress.

In fact, the very act of declaring a no preemption position sets the stage and sends the wrong message creating more confusion to all of those who are seeking order and design in the protection and security of family rights. They have become accustomed to the standard execution of that order and design under state statutes and regulations which are familiar to them even though the laws may be less than perfect in some respects, because the families have confidence from experience that these familiar laws will be carefully and zealously enforced giving comfort and security to those intended to be benefitted thereby.

There is no Federal Adoption Law in the United States. The law of Adoption in the United States is and has always been since 1851, governed by state statutes and regulation. The several States have always recognized the seriousness of that part of the adoption process that ensures the protection of family life. The states have indeed been loath to come to agreement quickly as to uniformity in all of the terms and provisions of any adoption act. This may seem anomalous but it is not. It sometimes takes many years for a State to come to the realization of the benefits to be derived from carefully crafted legislation. The thousands of Uniform Acts in place in all of the several States over the past 100 years give ringing testimony to this reality.

There is, even now, four years after the creation of the UAA, a considerable difference of opinion about many features of the process described in the Uniform Adoption Act created to develop new families through adoption. But there is almost unanimous agreement in all of the states concerning the value of the security obtained by the governance, order and design in the development, maintenance and preservation of confidentiality and proper adoption records in their respective existing State Laws.

In veritably every state in the United States, even in the absence of Uniform Adoption Act legislation, there is state statutory law with respect to records which is consistent with the UAA's Article of Records, Confidentiality and Access with regard to the following matters: (1) the confidentiality of adoption proceedings; (2) the confidentiality of all records pertaining to the proceedings after an adoption becomes final; (3) the sealing of the court records of adoption proceeding; (4) the basic procedure for sealing an adoptees original birth certificate and issuing a new one to reflect the adoptive parents' legal parentage; and (5) the availability of a limited exception to the general rule of confidentiality through a judicial finding of "good cause".

With respect to non identifying information about an adoptee's medical and social history, most modern state statutes encourage the collection and release of such information to adoptive parents and adoptees at age 18, upon request.

The Uniform Adoption Act, however, is more comprehensive than many of these statutes and establishes careful procedures for compiling, maintaining, releasing and updating nonidentifying information. Certain civil and criminal penalties as well as private actions for damages are authorized under the provision of the UAA for unwarranted failures to disclose information that should be disclosed as well as for unauthorized disclosure of confidential information.

Over half the states in the country, again without the benefit of the UAA, have mutual consent registries and most work rather well. They are carefully observed and followed by dedicated personnel who are deeply committed to preserve the protections and security which their State law provides. Of the very few states that have no registry, or other system that adopted persons and biological parents may use, identities are disclosed only by Court Order for identifying information. Most of the states allow the consensual disclosure of identities through a mutual consent registry established by State Statute. This procedure recognizes and protects the rights of birth parents or adoptees who choose to remain unidentified as well as the interests of those who wish to disclose their identities. If the birth mother and an adoptee at age 18 or older or the adoptive parent of an adoptee under 18 indicates a willingness to disclose their identities, the identifying information must be disclosed. If there is no mutual consent, the UAA allows a suit for disclosure of identifying information for good cause. There are several states which authorize a confidential intermediary to seek out the individual who is the object of a search and request permission for the disclosure of the individual's identity. Some States have two systems.

There are three states which will provide original birth certificates to an adult adoptee upon request unless the birth parent has filed a non disclosure request: Alaska, Kansas and Tennessee.

There are also states which have a search and consent procedure whereby the search and consent generally begins with the request to an adoption agency or state office from an adopted person or birth parent for access to his or her original birth certificate or adoption records. If the agency already has affidavits on file from the birth parents or adopted person consenting to the release of information, no search is necessary.

If no affidavits are on file, the state or the agency may conduct a search and may have a time limit within which to conduct the search. Once the birth parent or adopted adult has been located he or she then usually has a limited time within which to consent to ordering the release of identifying information. Failure to respond usually results in the records remaining sealed. One state, however, (Nebraska) considered a bill stating that silence constitutes implied consent.

Given the complexity and fragility of the subject matter and the fact that all of the States are gradually improving their respective systems by constant efforts ever to protect these intimate proceedings, it would seem more appropriate to intensify these efforts to improve registries and systems that work. This seems more prudent than to start back at square one to reinvent a new system with all of the problems of a national start up system. Adding one more bureaucracy to the federal system may provide some benefits, but it is not likely to provide the force needed to improve existing adoption services.

Is it not more logical when dealing with personal, confidential family matters to work quietly with those we know and trust rather than to bare our souls to the world at large? Most would opt for the former course with the expectation that their personal interest will be more secure. Does not this private narrow focus preserve a certain anonymity and confidence which is very important to those seeking the protection of the law? This cannot easily be provided by a national federal program. We should be ever vigilant in seeking ways to provide legal safeguards against violations of confidentiality - again this would be most difficult in a national federal program.

We should strive to build on the strengths of our existing systems and the acknowledged value of a carefully crafted and balanced mutual consent registry readily available to each of the several states. That system should include a most important feature which very well may constitute the very substratum of the success we seek. That is the feature to be found in Section 6-106(4) of the UAA as follows:

"...to cooperate with registries in other states to facilitate the matching of documents filed pursuant to this Article by individuals in different states"

This remarkable feature is a part of the great mutual consent registry section of the UAA. This feature alone answers many of the problems of those states which require residence as well as adoption services to be in the same forum or jurisdiction. The Mutual Consent Registry section as proposed in the UAA has been tested in the crucible of every conceivable technical, legal and practicable alternative by a conference of 300 lawyers, judges and law school professors over a period of five years. It has been completed and delivered after exhaustive analysis and debate as a moderate, well balanced compromise that will satisfy the demands of most everyone.

To insure that the miracle of birth not be denied to so many thousands of desperate but barren couples, we must exercise our best intelligence, compassion and good will to protect and preserve all that is good in the adoption process, with its beauty and wonderment that abides with the childless couple when they finally bring their adopted baby to a new and greater chance of life and happiness.

We must also take great care to avoid casual attitudes about this process which gives hope to children and biological mothers, and use our best efforts to do no harm but bring together those who, in a spirit of good will, can resolve our differences and guarantee to the several states a renewed commitment to continue to improve the adoption process.