Signed and Unsealed, New York Delivers on Its Promise for Open Birth Records

Photo credit to The Castle Family/Flickr

The day she turned 18, Annette O’Connell started sitting on her front stoop waiting for the mailman. Every day she waited, and every day he had the same response: “Nothing today, Annette.” Still, she waited. Nothing ever came. She wasn’t waiting for a love letter or a college acceptance letter. She was waiting for a piece of paper that would tell her who she was.

It wasn’t until January, after New York State passed the Clean Bill of Adoptee Rights law allowing adoptees over 18 unrestricted access to their sealed birth certificates, that O’Connell, now 52, was able to hold that piece of paper. She filmed the entire thing on Facebook live.

“Just holding the envelope in my hand when the UPS man came was completely overwhelming,” O’Connell says now, recalling the event. O’Connell has spent years advocating for these records to be opened and is one of the founders of New York Adoptee Rights Coalition “I could cry just thinking about it.”

Yet, O’Connell is just one of the thousands of adopted children in New York State who has spent their entire life not knowing basic medical and personal information about themselves.  This law, which passed on January 15th and was sponsored by Assembly member David Weprin and State Senator Velmanette Montgomery, has major implications for adoptees born in New York. While it doesn’t provide access to the original medical files, it does give adoptees important clues— names, dates and locations— that can help them track down more information.

This law makes New York only the 10th state to pass an unrestricted open birth records law, behind Alabama, Alaska, New Hampshire, New York, Colorado, Hawaii, Kansas, Maine and Rhode Island. The other 40 states have sealed, restricted, or partial access to the records.

In the first 48 hours after the law went into effect, people filed more than 3,600 requests for birth certificates on the New York Department of Health’s online portal, a press release from the department states. “Since the January 15 launch, we’ve received 7,224 pre-adoption birth certificate applications and 1,908 have been processed and mailed out,” Jeffrey Hammond, public information officer at the health department writes in an email.

O’Connell praised the state government saying that with just 62 days to get organized after the bill passed in the House and Senate, they were able to pull off “an absolutely flawless process.” “Simple, easy, directly to the point,” she says of the procedure.

The process in New York City, however, hasn’t been as efficient because its online filing portal wasn’t up and working until February, she says, but it’s getting there.

After searching through the New York Public Library’s birth index records, O’Connell had been able to find her first and last name: Kimberly Saxen. But she wanted confirmation about her middle name. When she opened that envelope with her birth certificate— a feat made possible by the new law— she saw her full birth record for the first time. And her whole name: Kimberly Sue Saxen.

The road to that middle name, and all it carries with it, was a long one. The fraught history of birth record access is one filled with court battles, birth parent and adoptee search groups, and controversial legislation.

In 1917, Minnesota passed the first U.S. laws requiring birth records to be sealed, but other states would soon follow suit. 1935 saw an even more restrictive law in California that blocked individuals from obtaining their birth record unless they had a court order. These laws would become even more aggressive at the end of World War II as birth rates spiked along with the numbers of unwed mothers. Cowed by oppressive cultural and social norms, family and friends encouraged these women to keep quiet about their babies, carrying on with their lives free of scarlet letters and motherhood’s constraints.

Opening sealed birth records like original birth certificates (or OBCs, as adoptees call them) can often help adoptees learn about their medical histories, which can in turn assist adoptees and their offspring in prevention and treatment of health conditions. Finding names can lead to finding medical records. Maternal and paternal medical records contain a plethora of genetic and health information that are difficult for adoptees to determine otherwise. Whether it’s hair color, height, heart disease, autoimmune disorders or mental illness, adoptees and their doctors are often left without a medical history to compare to.

A report by the University of Oregon says that there are approximately 5 million adopted Americans today and about 140,000 more are adopted each year. Yet, the census didn’t record adopted children in the kinship category until 2000, meaning this year’s census will only be the third time this population has been counted.

In New York, adoptee birth records have been under lock and key since Gov. Herbert Lehman, an adoptive father himself, enacted the 1935 birth record confidentiality record law to seal them. And for a long time, no one challenged that. The law was meant to protect the relationship between adoptive parents and adoptees, not necessarily to bar these individuals from their birth records. But that’s just what happened.

However, starting in the 1970s, advocates and reformers began pushing to open these records, not just in New York, but across the country. That activism history includes birth mother arrests, secret personal investigators, Supreme Court cases, and even a March on Washington in 1989.

The new law has been the direct result of many years of lobbying efforts by local and national adoptee rights and open records groups like Unsealed Initiative, Bastard Nation, American Adoption Congress and later, the New York Adoptee Rights Coalition. Joyce Bahr, 15-year president of Unsealed Initiative, first started going to Albany to lobby legislators in the early 2000s. During her first few years at Unsealed Initiative, she says she logged over 60 hours a week working towards open records.

This legislation is not the only one relating to adoption that has been introduced or debated in the New York State legislature in recent years. In 2008, New York introduced the Adoption Information Registry which requires birth parents to sign a new form, the DOH-4455, or the Birth Parent Registry, where they could decide whether or not they wanted to provide information to adoptees on their 18th birthday. In 2018 alone, the health department says they made over 400 matches between adoptees and birth parents who had put their information online.

Major opponents of the new law point to this registry as providing enough of an opportunity to provide adoptees with information. They also argue that the new law goes directly against the wishes of birth parents who may have wanted and expected confidentiality. “Although most adoptions today have some measure of openness, those which do not, arise out of protecting the safety and identity of the birth parent,” an opposition letter from the Women’s Bar Association of New York says. “While much of the stigma surrounding out of wedlock births has dissipated, there are still many who would be greatly harmed if an out-of-wedlock pregnancy were disclosed some 18 years after the fact.”

But New York adoption lawyer Faith Getz Rousso says these critiques are based in ignorance. Along with most advocates, Rousso insists that these mothers never had any expectation of confidentiality— rather, it was imposed upon them.

Rousso assists in private adoptions and was an adoptee herself. “You actually speak to these women and they didn’t want the secrecy.” She estimates that 98 percent of the adoptions she does now are open to some degree. “I don’t think I’ve ever had a birth mother say no,” she says of the mothers’ willingness to provide information for the child.

Carole Whitehead, 75, had a son in 1963 at age 18, and has never felt comfortable with the secrecy surrounding her pregnancy and birth of her child. And, the stigma of once being an unwed pregnant teenager certainly didn’t make it easy for her to speak out at first. “Everything had  to be hushed up, everything had to be secret,” Whitehead says. “Like we had to be punished.” But she continued to use her voice even when society told her to be quiet, eventually finding her way to advocacy after finding her son in 1985.

After years of educating legislators on why they had a right to their birth certificates, adoptee rights groups finally secured a major win in a state many considered to be a difficult one to win. It helped that the Senate had turned to a Democratic majority.

“New York was never supposed to do this,” O’Connell says. It’s now one of only 10 states to have open records laws. O’Connell is hopeful for the future of adoptee rights law in the rest of the country and abroad, as well. “If New York can do it, other states can and should do it as well,” she says.

Previously, the only way adult adoptees could gain access to their sealed birth certificates was by filing a petition, hiring a lawyer, and heading to court. That was easy enough. But then they also had to have a good reason, or “just cause” to open those records, and historically, that has proven difficult for adoptees.

“You have to show a very compelling reason,” Rousso says of opening records. She has had mixed success with getting a court to open records for her clients. Section 114 of the New York Domestic Relations Law, which guides adoption record filings, only allows these records to be unsealed if information is needed for a criminal case, medical or psychological reasons, or to determine Native American heritage. These are instances the law dubs “good causes.”

O’Connell says that in 1999, she attempted this legal avenue after being diagnosed with a corneal disease— a diagnosis that necessitated an organ transplant. Lacking basic personal and family medical history, O’Connell tried to file a petition for her records. She says the judge privately told her lawyer to do themselves a favor and not waste their time and money. This Rockland courtroom, O’Connell says, had only granted access to birth records once before for a Native American person trying to figure out their tribal history.

She wouldn’t gain access to parts of this record for another 20 years.

Carole Whitehead, who fought for her own hospital records from the birth for a number of years, feels that this new law is about more than a piece of paper marking a birth.

“Every adoptee now has their own past,” she says, “and they now can have their own future.”