“I found the most wonderful mother and sister and brother anyone could ask for.”
Kathryn, who had been told that her daughter had died at birth, was as ecstatic as Carolyn.
“I went into shock,” Kathryn told a Memphis reporter in 1996. “We met and it was like a dream. I still can’t believe at my age, eighty-three years old, and having a baby!”
The widely read newspaper article about Kathryn and Carolyn’s reunion seemed both uplifting and sad to Georgia Tann’s indirect victims. Many of them also hoped to receive their original birth certificates and to reunite with their birth families. But by the time the piece ran the hopes of the post-1951 adoptees had been dashed. While the part of Tennessee’s new adoption law regarding Georgia Tann’s direct victims remained unchallenged, the section pertaining to her indirect victims had been challenged in court. On June 24, 1996, six days before the second phase of the new law was to go into effect, a suit was filed in the federal district court in Nashville to block it.
The challenge was led by televangelist Pat Robertson, who claimed that openness in adoption would result in a decrease in adoptions and an increase in abortions. Women threatened by the prospect of being contacted by their relinquished children would abort their children rather than place them for adoption, he claimed.
He and other advocates of secrecy in adoption were opposed by the American Adoption Congress, which had been founded in 1978 to promote openness in adoption.
Advocates of openness and their opponents had sparred in court several times earlier. The adoptees consistently lost: the courts held that the federal and state constitutions didn’t prevent states from sealing records. If adoptees’ records were to be unsealed, it would have to be done by the state legislatures.
The Tennessee legislature’s passage of an open records law—and the possibility of a chain reaction—had alarmed Pat Robertson and his allies, and prompted the filing of the Tennessee class action suit. The lawsuit was brought by Small World Ministries, the only adoption agency in the state affiliated with the National Council for Adoption (NCFA). A Washington, D.C.–based lobbying organization, NCFA gets its funding largely from adoption agencies who try to placate insecure adoptive parents by trying to keep adoptees and birth parents apart. The lawsuit was also brought on behalf of three of Small World Ministry’s clients: an anonymous birth mother and two anonymous adoptive parents. Another anonymous birth mother joined them in the suit a few days after the complaint was filed.
The plaintiffs were represented by the American Center for Law and Justice (ACLJ), a law firm founded and funded by Pat Robertson. ACLJ attorneys apparently understood the futility of challenging the section of Tennessee’s new law pertaining to the direct victims of a baby seller. But in their suit before the U.S. District Court for the Middle District of Tennessee, they argued that the second phase of the new law, which opened the records of Georgia Tann’s indirect victims, violated federal and state constitutional rights of birth parents to privacy.
Denny Glad, Caprice East, and other Tennessee Coalition members had anticipated this argument. They had tried to defuse it by including in the new law something to which they were philosophically opposed: a contact veto which could be filed by any birth parents who didn’t want to meet or speak with their relinquished children. Inclusion of a similar veto had helped ensure passage of open adoption records legislation in 1990 in New South Wales, Australia. The veto had been invoked by only 2 percent of birth parents in New South Wales, and Coalition members hoped that few birth parents affected by the new Tennessee law would utilize the veto as well.
Tennessee’s contact veto didn’t apply to the direct victims of Georgia Tann, but only to the post-1951 adoptees. Those whose birth parents filed a contact veto would, like Georgia’s direct victims, receive their original birth certificates and adoption papers. But they would be subject to civil and criminal penalties if they attempted to contact their parents.
In writing the new law, Coalition members had also accepted another compromise, this time on behalf of the small number of birth mothers who had relinquished children conceived as the result of rape or incest. Adoptees whose records revealed that they had been conceived in this way would not be given their adoption files, original birth certificates, or the names of their birth parents.
ACLJ attorneys insisted that neither the nondisclosure of information regarding this vulnerable subcategory of mothers, nor the contact veto, provided sufficient protection. Birth parents, the ACLJ attorneys insisted, were terrified of being contacted by their children. Unsealing birth records would “open the way for adoptees or others to blackmail the natural [birth] parents by threatening to disclose embarrassing circumstances surrounding the birth,” ACLJ lawyers said, quoting an opinion of the New York Court of Appeals.
This claim echoed Abe Waldauer’s attorney’s assertion fifty-six years earlier that openness would place “an effective instrument of blackmail in the hands of unscrupulous [birth] parents and open the way for them to prey upon real [adoptive] parents. . . .”
The supposed victims and victimizers differed in the telling, but the ACLJ lawyers’ language was more similar to Georgia Tann’s attorney’s than they realized. Georgia had instituted secrecy in adoption partially to appease her clients, adoptive parents who didn’t want their children to reunite with their birth parents. NCFA and its member adoption agencies were primarily concerned with the wishes of adoptive parents as well. But, realizing that obvious bias toward the most privileged members of the adoption triad might make judges unsympathetic to their cause, NCFA and the ACLJ attorneys feigned concern for birth mothers—the women no one had ever really cared about.
The ACLJ attorneys also argued that the opening of adoption records would result in an increase in the number of abortions, and a decrease in the number of adoptions. The National Council for Adoption joined the ACLJ in the lawsuit, as friend of the court.
The lawsuit challenging Tennessee’s new adoption law had been brought against the governor, the attorney general, and the commissioner of Human Services of Tennessee, who were represented in the lawsuit by the Tennessee Attorney General’s Office. Sixty-nine triad members— thirty-three adult adoptees, seventeen birth parents, and nineteen adoptive parents—supported the Tennessee Attorney General’s Office as friends of the court in defending the new adoption law. So did attorney and adoptive father Bob Tuke and adoptee Caprice East, on behalf of the Study Commission.
Fred Greenman of New York City, the American Adoption Congress’s legal advisor and a reunited birth father, volunteered his services pro bono. The AAC also retained the services of three Nashville attorneys, Harlan Dodson III, Anne Martin, and Julie Sandine, who worked for reduced fees.
Members of the Tennessee Coalition and the AAC attorneys submitted to the court affidavits, statistics, and results of studies regarding adoptees’ medical and psychological need for knowledge of their birth families.
And, countering one of their opponents’ main arguments, the AAC lawyers insisted that their opponents’ use of the word “privacy” regarding birth parents’ wishes was misleading. Privacy, they asked, from whom? Most birth mothers, like most people, desired privacy from the public regarding their pregnancies. But “very few, if any, asked for ‘privacy’ from the children they surrendered for adoption,” attorney Fred Greenman wrote later. “You may have an unlisted phone number for privacy, but you still give it to your children so they can call home.”
Lawyers for Georgia Tann’s victims also insisted that their opponents’ claim that birth mothers had a “reasonable expectation of secrecy” from their children was false. No such written promise was ever made to them. (Birth mothers were, however, sometimes promised that their children would later be able to contact them. Birth mothers were also often required to sign papers promising not to contact their children— hardly a sign that agencies really believed the mothers desired “privacy.”)
Oral assurances to birth mothers of secrecy from
their offspring, if they were ever made, were fraudulent. State laws sealing adoptees’ original birth certificates had always been subject to change. Even under closed records laws, adoptees had long been allowed access to their records at the discretion of the courts. Today, with the help of adoption search groups and the Internet, adoptees unable to see their records are still sometimes able to find their families. And adoptive parents who receive the names of their children’s birth parents sometimes share this information with their children. How could any relinquishing mother be assured she would never be found?
The lawyers for Georgia Tann’s victims also refuted their opponents’ claims that openness in adoption would result in a decrease in adoptions and an increase in abortions. The very opposite, Fred Greenman had discovered, was true. The only two states that had always allowed adult adoptees access to their original birth certificates were Alaska and Kansas. A comparison of adoption and abortion rates throughout the country revealed that adoption rates in Alaska and Kansas were higher than those in the United States as a whole, and that the adoption rate in Kansas was higher than in all four surrounding states. A comparison of resident abortion rates in the different states showed that abortion rates in Alaska and Kansas were lower than those in the country as a whole, and that the rate in Kansas was lower than in any of the four states that surrounded it. If openness in adoption had any impact on the rates of abortion and adoption, it was to decrease the number of abortions, and to increase the number of adoptions.
On August 23, 1996, the federal district court in Nashville ruled in favor of Georgia Tann’s victims, lifting a temporary restraining order that had thus far prevented them from accessing their records.
But ACLJ attorneys quickly appealed to the U.S. Court of Appeals for the Sixth Circuit, and obtained a stay that once again prevented the second phase of Tennessee’s new law from going into effect. Plaintiffs and the defense made their arguments all over again. Then on February 11, 1997, the Court of Appeals affirmed the District Court’s finding, dissolving the stay. To adoptees’ further joy, the Court of Appeals also took the unusual step of dismissing the entire case and rejecting all federal constitutional claims.
Writing for the court, Judge Albert J. Engel said, “[W]e note our skepticism that information concerning a birth might be protected from disclosure by the Constitution. A birth is simultaneously an intimate occasion and a public event—the government has long kept records of when, where, and by whom babies are born.”
Judge Engel also praised the Tennessee law. “The statute appears to be a serious attempt to weigh and balance two frequently conflicting interests: the interest of a child adopted at an early age to know who that child’s birth parents were, an interest entitled to a good deal of respect and sympathy, and the interest of birth parents in the protection of the integrity of a sound adoption system.”
ACLJ attorneys asked the U.S. Supreme Court to review the decision, but the court refused.
Georgia Tann’s victims were jubilant. But more work lay ahead. Having exhausted their possibilities in federal courts, ACLJ attorneys began an action in Tennessee state court, arguing that the new adoption law violated the state constitutional rights of birth and adoptive parents to privacy. On March 26, 1997, ACLJ attorneys requested a restraining order barring implementation of the second phase of the law from the State Circuit Court in Davidson County, Tennessee. The order was granted. But after both sides presented their arguments Georgia Tann’s victims won again. On May 2 the court vacated the restraining order, finding that a “birth parent has no constitutional rights to nondisclosure of his or her identity.”
ACLJ lawyers then appealed to the Tennessee Court of Appeals, which issued another stay, and, after reviewing arguments, reversed the state circuit’s ruling, finding that the new adoption law did in fact violate state constitutional law. (The court had been persuaded by ACLJ attorneys’ assertion that birth parents had had a “reasonable expectation” of having their identities kept secret from their children.)
After having experienced four previous court victories, Georgia Tann’s indirect victims and their advocates were chilled—and aware that more than Tennessee’s new law was at stake.
“This court battle has the potential to make or break the case for open adoption records. . . . If the court finds in favor of the Tennessee law, the case will become a millstone around the necks of those who oppose giving American adoptees the same records to which all other Americans are entitled by law. If it goes against us, we will have little hope of having open adoption records anywhere in the United States, because this case will come back to haunt us again and again,” an AAC member had written in 1996.
On October 2, 1998, the AAC attorneys filed a motion to appeal the decision of the Tennessee Court of Appeals to the Tennessee Supreme Court. The motion was granted, and the opposing sides presented their arguments on June 3, 1999.
The courtroom was packed. Many of those present were members of Denny Glad and Caprice East’s Tennessee Coalition, which had kept the pressure on during the grueling three-year fight. Most Coalition members wore identifying labels: “Adoptee,” “Birth Parent,” “Adoptive Parent.”
“The Law’s ultimate fate is now in the hands of the five Supreme Court Justices. . . .” wrote a reporter for the Coalition newsletter.
The wait for the Justices’ decision seemed excruciatingly long, but it was definitely worthwhile. Issued on September 27, 1999, the decision was both unanimous and an enormous victory for open records. The Justices had determined that Tennessee’s new adoption law did not violate the constitutional rights of birth parents. It did not violate the rights of adoptive parents. The new law could stand.
No longer, said Representative Joe Fowlkes, would Tennessee adoptees be treated like “cattle or property.”
“Victory in Tennessee!” exulted a reporter for an adoption newsletter. Across the state of Tennessee, and, in adoption circles, throughout the entire country, the mood was euphoric.
Finally, justice. And, as AAC and Coalition members had predicted, and Pat Robertson and NCFA had feared, justice was also coming for the indirect victims of Georgia Tann who had been adopted outside Tennessee.
In 1999 a group of advocates led by Carolyn Hoard, a birth mother and member of the American Adoption Congress, caused Delaware to change its law to allow adult adoptees copies of their original birth certificates.
From 1998 to 2000 Helen Hill and other adoptees from a group called Bastard Nation successfully fought for the right of Oregon adoptees to have access to their original birth certificates.
Bastard Nation caused original birth certificates to be opened to Alabama adoptees in 2000 as well.
In 2004, a successful campaign by Paul Schibbelhutte, a reunited birth father and member of the American Adoption Congress; Janet Allen, a state senator, an adoptee, and a member of Bastard Nation; and Lou D’Alessandro, a state senator and an adoptive father, opened original birth certificates to adoptees in New Hampshire.
Nine other states—Colorado, Hawaii, Indiana, Montana, Michigan, Ohio, Oklahoma, Washington, and Vermont—allow adoptees born before or after certain dates access to their original birth certificates.
In each state, adoptees and their advocates relied heavily on arguments made in the Tennessee case. As of January of 2007, open records bills were pending in six more states.
Epilogue
“The evil that men do lives after them. . . .” Change the gender of the protagonist, and Shakespeare could have been anticipating the pain caused by Georgia Tann. I saw it in the faces of her direct victims for over a decade. And I saw it in my daughter’s face when, during the winter of her sophomore college year, she spoke of a need to know her birth mother that was so intense she wanted to leave school to find her.
She met her mother the following fall. Aided by the knowledge of her mother’s surname, hospital records indicating her first name, and old city directories for Niagara Falls, New York, I’d found it easy
to locate her.
“Oh my God!” Gail cried when, at Beth’s request, I phoned her. “I’ve been waiting for this call! Tell Beth I married her father—she has three younger brothers!”
Ten days later Beth drove with her boyfriend from her college campus in Bowling Green, Ohio, to Niagara Falls to meet her family: parents Gail and Salvatore (Sal), three birth brothers, four grandparents, aunts, uncles, and cousins. It was a wonderful reunion. Like most reunited adoptees she reveled in the similarities between herself and her birth relatives. She looks like both of her parents, uses the same gestures as her mother, and shares the family’s love of cards and board games. Like her, they’re confident, resilient, and thrive on competition. She learned her health history and received a family tree—an album full of pictures of distant relatives and of the home in which her ancestors had lived in Italy.
And she received gifts her excited family had quickly assembled. An aunt gave her a photo album of Gail and Sal’s wedding, and of Beth’s three brothers as babies. Another aunt had knitted an afghan bearing Beth’s name and birth date. Her uncle Keith, an artist, had painted her portrait. She received sweatshirts with Niagara Falls logos, a Buffalo Bills jacket, jewelry, flowers.
Living with her family the following summer, and continuing to visit them frequently afterward, Beth filled the gap that had always pained her. Her family got the chance to know and love her. And I, who’d felt threatened by Beth’s search, learned that love isn’t finite, and that adoptive parents who help their children search sometimes become even closer to them than before.
All four of Beth’s brothers—the brother she’d been raised with, Tim; and her birth brothers Christopher, Michael, and Alex—were groomsmen at her wedding in May 2006. Gail, Sal, and Beth’s birth grandmother sat in the front of the church with Bob, my mother, and me. When it came time for the traditional father–daughter dance, Beth danced twice—first with Bob, and then with Sal. There were over three hundred guests at the wedding; virtually every one teared up during the second dance.
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