Pennsylvania’s Expansion of Open Adoption Post-Act 101 – Good or Bad, Right or Wrong, It’s Here

Pennsylvania removed the restrictions on legally enforceable open adoptions via legislation referred to as Act 101. As many adoptive families and individuals know, Act 101 provided for Post-Adoption Contact Agreements, known as PACAs. These Agreements essentially established legally enforceable open adoptions in Pennsylvania. Under certain circumstances, adoptive parents and certain categories of birth relatives could enter into a PACA and allow for contact between adoptees and certain birth relatives post-adoption. PACAs could provide for any type of contact that was agreed upon by the parties.

Act 101 was welcomed with open arms by many families involved in relative adoptions, private agency adoptions where birth parents had indicated their preference to allow their child to be adopted by a family who would agree to contact with the birth family post-adoption, and even step-parent adoptions. However, the application to and effect of Act 101 on adoptions through the foster care system was not so great.  Children in the foster care system had often already suffered significant loss as a result of the circumstances under which they entered the system.  With the implementation of Act 101, these children’s adoptive parents often had to reiterate to their adopted child that it was not a good idea to have contact with their birth family. Or, in other cases, adoptive parents had to determine what type of contact would be appropriate with birth family members while still protecting their adopted child from the potential additional trauma of having contact with some birth family members, but not the biological parents.

Fortunately, in the years since the enactment of Act 101, its effect has been proven to be less detrimental to children in the foster care system and in some cases, has even proven to be helpful in expediting permanency for children whose parents are destined to have their parental rights terminated. Instead of being subjected to long, difficult and often appealed termination proceedings, in some cases, PACAs have promoted parents voluntarily relinquishing their parental rights because certain birth family members would continue to have contact with the child. The child then receives the permanency he or she deserves through a faster and less traumatic termination proceeding.

In November, Pennsylvania further expanded open adoption with its recent amendment to the Adoption Act related to original birth records. Effective November 3, 2017, an adoptee who is at least 18 years of age and who has either graduated from high school, completed a general educational development program, or legally has withdrawn from secondary schooling, can apply for the adoptee’s non-certified copy of an original birth record. In cases where an adoptee is deceased, the adoptee’s descendants may apply for the adoptee’s non-certified copy of original birth record. The Pennsylvania Department of Health must then issue a non-certified copy of the original birth record within 45 days of receipt of the application provided that it complies with the requirements set forth in the Adoption Act at § 2937. I find this ironic since obtaining a birth certificate reflecting an adoptive child’s new name and the names of his or her adoptive parents post-adoption takes in excess of four months.

At first glance, an adoptee’s ability to obtain his or her original birth record seems appropriate and beneficial for many reasons. However, this amendment also provides that the Pennsylvania Department of Health must develop a “Contact Preference Form” which allows birth parents to state a preference regarding what type of contact, if any, they wish to have with their adoptive child. This is provided to a birth parent upon request and comes with a requirement that an updated medical history form must be provided if the birth parents wish for their preference to be considered. Of course, the first issue that comes to mind is the situation where a child is placed for adoption at birth and the decision to place the child for adoption was one based on the understanding that the birth parents’ identities would never be revealed.  Now, not only can the birth parents’ identities be revealed, but the adoptive child may learn through this Contact Preference Form that his or her birth parents do not wish to have any contact with him or her. To suggest this type of rejection causes no psychological or emotional harm is naïve.

This amendment to the Adoption Act also allows for a birth parent to request that his or her name be redacted from the original birth record. I’m not sure if this is helpful since an adoptee can now request the birth record hoping for information, only to receive a birth record with no real information. Add that to a Contact Preference Form that says no contact wanted and you have a perfect storm of heartache and disappointment. Additionally, the Pennsylvania Department of Health only accepts a name redaction request if all of the following requirements apply:

1. The form for redaction has been notarized.
2. The birth parent provides two items of identification of the birth parent.
3. If a medical history for the birth parent was not provided previously, or if one was provided and needs updated, the birth parent completes a medical history form or updates a prior medical history form.

So the only way that a birth parent can retain their privacy is if they are aware of the change in the adoption statute, they have the ability, both via access and understanding to contact the Pennsylvania Department of Health to obtain the name redaction form, that they actually have two forms of identification and the ability to find, pay for, and coordinate their notarized signature, and if they are willing to provide their private medical history. These requirements ignore the many adoptions that occurred as a result of drug addiction, mental health issues, poverty, criminal activity, and rape and the sometimes insurmountable hurdles these circumstances create.

This amendment also provides that if a birth parent dies after submitting a name redaction request form, a non-certified copy of the original birth record may still be provided without redaction of the deceased birth parent’s name.  Birth parents have no protection upon their death of the disclosure of their identity. Again, this amendment ignores the very real circumstances under which some children have been placed for adoption and even after a birth parent’s death, could cause that birth parent’s family members, friends, and community connections embarrassment or harm if the birth parent’s identity is disclosed without his or her permission.

When weighing the rights of birth parents and adoptees, it appears that the best way to preserve both group’s rights to privacy and to protect them from further harm would have been for this amendment to simply be prospectively applied to only adoptions occurring after the effective date. That way, birth parents are aware of their child’s ability to obtain their identifying information and can make decisions based on that ability, and adoptees will know that they have the ability to obtain that information once reaching the age of majority.

The circumstances surrounding every adoption are unique and all parties should keep the best interest of the child in mind.  However, sometimes those answers are not always clear.  It’s important to understand this amendment and how it may impact you or your family.

Holly Filius is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Family Law.