Surrender and Subordination: Birth Mothers and Adoption Law Reform
Elizabeth J. Samuels
University of Baltimore - School of Law
20 Michigan Journal of Gender and Law 33 (2013)
For more than 30 years adoption law reform advocates have been seeking to restore for adult adoptees the right to access their original birth certificates, a right that was lost in all but two states between the late 1930s and 1990. The advocates have faced strong opposition and have succeeded only in recent years and only in eight states. Among the most vigorous advocates for access are “birth mothers” who surrendered their children during a time it was believed that adoption would relieve unmarried women of shame and restore them to a respectable life.
The birth mother advocates say that when they surrendered their children, their wishes were subordinated and their voices silenced. They say they want to be heard now as they raise their voices in support of adult adoptees’ rights to information in government records about their original identities. Opponents of restoring access, in “women-protective rhetoric” reminiscent of recent anti-abortion efforts, argue that access would harm birth mothers, violating their rights and bringing shame anew through unwanted exposure of out-of-wedlock births. Opponents say they must speak for birth mothers who cannot come forward to speak for themselves. Birth mother advocates respond that the impetus historically for closing records was to protect adoptive families from public scrutiny and from interference by birth parents, rather than to protect birth mothers from being identified in the future by their children. They maintain that birth mothers did not choose and were not legally guaranteed lifelong anonymity. They point out that when laws that have restored access have been challenged, courts have found neither statutory guarantees of nor constitutional rights to anonymity. They also offer evidence that an overwhelming majority of birth mothers are open to contact with their now grown children.
As a means of assessing these competing claims, this article analyzes the provisions in a collection of birth mother surrender documents assembled by the author — seventy-five mid-twentieth century documents executed in twenty-six different states. In order to establish the significance of the provisions with respect to these claims, the article first relates depictions by birth mothers of a journey from silence to legislative advocacy. The article then examines the conflicting claims about birth mothers that pervade legislative contests over adult adoptee access to original birth certificates. Finally, the article analyzes the provisions of the surrender documents. The analysis of the provisions definitively supports birth mother advocates’ reports that women were neither offered a choice of nor guaranteed lifelong anonymity. Their opponents’ contentions to the contrary, whether motivated by concern for birth mothers or other interests, reinscribe an earlier culture of shame and secrecy, subordinating women’s own wishes and silencing their newly raised voices.