The Promise of Adoption: Not a Promise of Confidentiality

by Joyce Bahr


I recall hearing attorney Harold Cassidy speaking at an adoption conference in 1989 in Manhattan. Mr. Cassidy was a litigator in the Mary Beth Whitehead surrogacy lawsuit in 1988, a case which received a great deal of media coverage. At the conference he spoke about The Promise of Adoption. I knew what he was talking about because I heard the phrase very often in the media in the 1960’s before I became pregnant. I would think that many here would recall hearing of this so called promise: that if a baby was put up for adoption he would live happily ever after with loving adoptive parents. Many of us were influenced by this message which we have since found to be dubious at best.

Mr. Cassidy spoke of the promise of adoption saying that if the promise was not fulfilled then there would be a problem. And certainly there is a problem. Social mores and adoption practice have changed greatly in recent decades, but very few changes in the law have taken place for adoptees and first parents. The New York Adoption Registry, for example, has reunited very few adoptees and first parents. In fact, it is more or less reunion proof. Funding for post adoption services has been slight and has also helped very few. Adoption as it was practiced in the 1940’s, 1950’s, 1960’s and 1970’s caused great harm to those it touched. Even today adoption is fraught with difficulties.

One further noteworthy aspect of Mr. Cassidy’s presentation was how closed adoption, as it has traditionally been practiced in this state and country, assigns qualities to adoptees as if they were slaves. This idea may come as a shock to many, but an examination does reveal certain similarities between the legal position of the adoptee and the slave. First, neither the slave nor the adoptee has had any say whatsoever in whether or not to enter into his condition. Second, in both cases parties other than the slave or adoptee have complete control over his legal identity. In the one case the master exercises such authority and control, giving the slave his names both Christian and sir. In the other case the state and the adoptive parents collude not only to keep the adoptees’ birth identity a secret, but further to give him a new, false identity as if he were born into the adoptive family. Finally, for both the slave and the adoptee, there is for all practical purposes no appeal from what has been done to them by the law. The slave may be granted freedom by his master or he may not. His only other remedy is to run away and seek to live in the freedom of his own identity in some conducive place. The adoptee is utterly dependent upon his adoptive parents until he reaches the age of maturity at which time he will still find in New York that his birth identity is under lock and key, forbidden to him and sealed forever. For both slave and adoptee others “own” that person’s very identity. To own someone’s identity is in a very real way to own him.

The era before Roe v. Wade was one of secret pregnancies, homes for unwed mothers, forced adoptions, trauma for both adoptees and the first mothers and the creation of a whole class of citizens who were prevented by the state from knowing who they were and where they came from. Accepted social mores and the religious consensus at the time branded unwed mothers with the stigma if illegitimacy, leaving the fathers mostly unnamed and unpunished. Adoptees were conditioned to be grateful for having been separated from their natural families and for being forbidden from knowing their original identities. Indeed, it has been said that adoption is the only trauma where its victims are expected by society to be grateful. Adoptees and first parents were sometimes punished for searching for each other. Searching itself was frowned upon and discouraged which is sadly ironic because today the universal consensus in the adoption therapeutic community is that search and reunion are indispensible to healing for both first parents and adoptees. Through the whole course of the post war period before Roe to today, the voices of the two groups most qualified to speak about the effects of adoption, adoptees and first parents, have been consistently ignored and marginalized in adoption law.

Social workers in the 1890’s did not speak the word confidentiality when they forced unmarried, pregnant women to surrender. In the 1960‘s some women heard: You will have confidentiality after being strictly warned not to interfere with the adoptive family. I know this firsthand because my social worker did tell me I would have confidentiality and I had to ask her what it meant. She said it meant that they would not tell anyone I was there. It was strange that she did not speak of confidentiality in the presence of my mother who by law, because I was a minor, had to be a witness. However, my mother spoke about it with her later and what the social worker said didn’t mean anything; it had no legal force. For years, first mothers have stated that confidentiality was imposed on some women and many never heard the word. We sinning, pregnant, unmarried women were told what to do by society, our parents, attorneys and social workers. We were victims of the times with their strict codes of morality that pertained only to women and not men. Men did not have to endure the punishment and the stigma of illegitimacy. Also, we were told to go home and forget this ever happened. We were not promised we would forget, we were told. The surrender paper signed by many stated that they agreed not to interfere with the custody, control and management of said child. Professor Elizabeth Samuels from the Baltimore School of Law concluded in her study The Idea of Adoption: An Inquiry into History of Adult Adoptee Access to Birth Records that confidentiality was for adoptive parents so there would be no intrusion by the first mother who was commonly considered to be an inferior person. Neither the word promise, nor the word confidentiality were contained in surrender papers because they were social mores, not legal terms.

Setting the record and history straight is pertinent as this pertains to women’s history. I have listened to the stories of many, many first mothers in a support group I led in Manhattan for twelve years: The Manhattan Birth Parents Support Group. We all agreed that we were told what to do and had no information or options presented to us. None of us received a copy of the surrender paper terminating our parental rights and none of us were given confidentiality or a secrecy guarantee. I’ve often thought how odd it is that in 1966, when I was subjected to Victorian social mores and forced to surrender my son, Hugh Heffner was opening the Playboy Club down the block from the office in the Chicago Loop where I signed the paper terminating my parental rights.