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.