Closed Adoption - Legal Matters

Legal Matters

Only a court order allows closed adoption records to be unsealed, which was quite uncommon prior to the early 1990s. A few cases have surfaced in which records were thought to have been sealed but were not—either by mishandling or misunderstanding. Although rare, a small number of people have been prosecuted over the years for violating the confidentially of sealed adoption records. In 1998, Oregon voters passed Measure 58 which allowed adoptees to unseal their birth records without any court order. Some other states which formerly kept closed adoption records sealed permanently by default have since changed to allowing release once the adoptee turns 18. However, these laws were not made retroactive; only future adoptions subsequent to the laws' passage apply.

On June 1, 2009, Ontario, Canada opened its sealed records to adoptees and their birth parents, with a minimum age of 18 for the adoptee, or one additional year if the birth parents initiate the request. Both parties can protect their privacy by giving notice of how to be either contacted or not, and if the latter, with identifying information being released or not. All adoptions subsequent to September 1, 2008 will be "open adoptions"

For searches involving a confidential intermediary, the intermediary initiates obtaining the court order and is reimbursed for doing so. However, once the court grants this, it is still confidential information to everyone else until the other party agrees otherwise. (See the previous section.)

Many states, though, still keep this information sealed even after the adoptee and the birth parents agree to know and contact each other. A second court order would be required to have this information unsealed permanently. This is well beyond the scope of the initial search, and what is covered by the payment to the intermediary. Should an adoptee subsequently lose his or her unamended birth certificate, a court order may be required to obtain another one (even if a photocopy is submitted).

The probate laws of most states in the U.S. prohibit an adoptee from automatically inheriting from his or her birth parents. This applies regardless of whether or not the birth father participated in or agreed to the adoption. Had the adoption not have taken place, any son or daughter would be an heir upon his or her father's death—regardless of who his childhood caretakers were. There can be additional complications if the birth father has subsequently moved to another state. Should a birth parent include an "unknown" adoptee in his or her will, the probate court has no obligation to fulfill this type of request, while "known" adoptees may have the same status as non-family members. However, there is some variation in probate laws from one state to another.