Minnesota’s Bill: Good, Bad, or Just Different?

By Gregory D. Luce on March 21, 2016 — 3 mins read

In a comment on my last post, Jim Hamilton, an adoptive father, lawyer, and adoptee rights advocate in Minnesota, briefly detailed Minnesota’s approach to the issue of adoptees who ask for their original birth certificates. I’m a fellow Minnesotan and responded with a few words and then asked a question, which I’ll get to in a minute.

First, here’s the broad gist of the law and issue in Minnesota. Jim also provided a quick and useful summary of the law and its politics in a subsequent reply here, plus the Minnesota Coalition for Adoption Reform, the state group organizing the legislative change, has information about the pending bill on its website here.

Danger Thin Ice Sign in Front of Grass Field

Current Law

Adult adoptees in Minnesota can get their original birth certificates today on generally two conditions: they were adopted on or after August 1, 1977 and 2) their birth parents do not file an affidavit prohibiting the disclosure. Actually, there are three other ways: 1) your birth parents are dead; 2) you live until the ripe age of 100 years, when the record becomes public, or 3) you use a rather complicated search procedure that the state oversees, with the hope that any vetoing mom or dad changes their minds if there happens to be a veto. Ooops, five ways: if you were adopted before August 1, 1977, and your kindly birth parents didn’t care about you getting the information—–that is, if your birth parents didn’t veto your right—then you can, get this, sue the bastards go to court to get your original birth certificate. And then it’s still not a done deal because, well, that’s the way court is.

Shit, it’s complicated. Suffice it to say that, no matter what, if your birth parent in Minnesota vetoes the disclosure of your birth certificate, you are currently flat out of luck. There’s actually no further process for you at that point. Zilch. You lose. And, according to Jim Hamilton, there have been over 1,300 such losers since 1977. But there’s hope. I think.

Proposed Law

The current proposed law (SF 2132/HF 2247, review it here) essentially changes one big thing but also throws a few supposedly simplifying wrenches into the process. It changes the law so that adult adoptees who were adopted prior to August 1, 1977—call them old codger adoptees like me—actually get all the rights, nonrights, and rigamarole that the youngsters already had. The old codgers get to join the lucky bastards who were adopted after August 1, 1977.

That is, every adult adoptee in Minnesota, if this law passes, can request and get their original birth certificate. But (and I knew you knew the but was coming), there is still a disclosure veto over the birth certificate. It’s basically making the really unfair slightly less unfair. But, and this is the other decently significant change— you are not quite out of luck with a disclosure veto. You can now sue the bastards go to court if your birth parent exercises a veto. The bill adds a necessary post-veto court process and further modifies it so that, if the vetoing parent does not respond to the court action, the original birth certificate is released. Whew. And I’m probably missing a few other things.

So here’s the question I asked Jim and others, hopefully to start a reasoned discussion about a pretty nuanced modification to an already dirty law. Is the proposed amendment clean or dirty? Do you support or oppose? Or, if you don’t like those questions, is the proposal good, bad, or ugly? Or, if you are a Minnesotan (and only Minnesotans will likely get this joke) is it good, bad, or just different? And would it change your mind to know that there has been only one disclosure veto filed in Minnesota in the last five years?

The way I see it (and Jim talked about this as well in his response to my question), it doesn’t create new veto disclosures in Minnesota. The vetoes (called an “affidavit of nondisclosure”) have been around for nearly forty years. Or, taking a different perspective, you could say it further codifies and preserves the disclosure veto. But it does at least try to level the playing field that adult adoptees currently have in Minnesota in trying to get their original birth certificates. And adds a fairly significant change in allowing challenges to the veto, something I have yet to see in other laws.

One other thing it demonstrates is this: disclosure vetoes, once in place, create a massive legal headache if you try to remove them later. With forty years of vetoes in place in Minnesota, there is at least a strong argument that those who have filed the vetoes have a vested (and potentially constitutional) interest in holding on to them.

Issues: Adoptees

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  • Some clarifications are in order, Greg. I apologize for any inaccuracies in my original posts.

    The most important point is that post-1977 adoptees do not receive their original birth certificates upon request. They, too, must first use the intermediary search process. If that process does not locate birth parents wihin the statutory period (6 months in theory, often more than a year in practice) then the adoptee is entitled to release of his or her OBC. If the search does locate a birth parent who consents to release, the OBC is released. However, the searcher is obliged to tell the birth parent of the availability of the affidavit of non-disclosure. If the birth parent elects to file one, the adoptee is dead in the water.

    The current bill would make OBCs available upon request to more than 130,000 adult adoptees (or their descendants) and permit the other 1300 to petition for release of theirs.

    • Jim,

      I have to take issue with this statement:

      “The current bill would make OBCs available upon request to more than 130,000 adult adoptees (or their descendants) and permit the other 1300 to petition for release of theirs.”

      First of all, you’re simply speculating as to the likely number of vetoes. Our numbers are presented as if fact. Secondly, by using the adoptee rights phrase “would make OBC available upon request”, you are being disingenuous in my opinion. They are not available upon request. They are available upon request only if no veto has been filed.

  • What is the history of decisions regarding court challenges by those born post August 1977 that are subect to Affidavits of Non Disclosure? Is there anyway to track such cases? Thx!

  • Is there some way to trace the history of challenges to Affidavits of Non-Disclosures in MN courts?