Our Target is Secrecy

A lesbian couple in Oklahoma married and decided to have a child. One of them conceived with sperm from a “known,” i.e. non-anonymous, donor. Two years later their marriage began to break up. During the divorce proceedings, the judge struck the name of the “non-gestational” parent from the child’s birth certificate, on the grounds that she had never formally adopted the child. In place of her name, the judge said, would go that of the donor. The non-gestational parent is attempting to appeal the case, with likely assistance from the Oklahoma ACLU. Her argument is that the courts have already recognized the right of non-gestational parents in LGBTQ+ families to have their names listed on their children's birth certificates, and to do otherwise is to fail to grant LGBTQ+ couples the same marriage protections granted to straight couples.

Like the child at the center of this battle, I had my parentage legally rewritten. I see that although the child is at the heart of the fight, he is not at the heart of the story, which is told as one about LGBTQ+ marriage and parental rights. My genealogical origin was hidden by a legal decree that redefined my legal family identity. I therefore pause over a fact about battles like the one in Oklahoma that standard accounts generally ignore: that given the birth certificate’s combination of of roles, to determine parental rights over a person entails a determination, or redetermination, of that person’s family identity.

I pause because, as one whose parentage was legally rewritten, I am obsessed with the fact that the legally binding document of my parentage is titled a “Certificate of Live Birth,” despite listing the names of two people with no involvement in my birth. Like others barred access to the original versions of their birth certificates, I see the altered version as a legal fiction and a genealogical lie. To call it a lie is to say that it misrepresents the facts. The fact that it misrepresents is my genealogical origin. But my birth certificate truthfully states a different fact: my adoptive parents’ legally binding parentage. In my case—and in that of the child in Oklahoma—the birth certificate cannot truthfully represent both sets of facts.

What should a birth certificate truthfully record?

The birth certificate, officially understood, is, in the words of the American Bar Association, “a document issued by a government that records the birth of a child for vital statistics, tax, military, and census purposes.” It is a legal document establishing “proof of an individual’s age, citizenship status, and identity.” Desmond Tutu said the birth certificate is “a small paper, but it actually establishes who you are and gives access to the rights and privileges, and the obligations of citizenship.”

Notice how “identity” appears alongside “age” as a fact the birth certificate is designed to certify. But identity is a more complex idea than age. My legally binding birth certificate establishes only my legal identity, not my genealogical identity: It does not identify who I came from. Severance prises the two apart.

The function of the birth certificate, officially understood, centers on its meaning for its possessor. Its function is to certify facts about the possessor’s birth. But as severance shows, and as conflicts like that in Oklahoma remind us, the birth certificate carries an additional meaning for the parents whose legal status it confirms.

Because a person’s legal parentage can change long after that person’s birth, the official idea of the birth certificate as a “record of the birth of a child” is incomplete, if not disingenuous. The birth certificate, once altered to record new legal parentage, now records facts that did not obtain at the time of birth. It collapses—conflates—several distinct events into one. The conflation, historically, enabled adoptive and other parents to conceal from their children the truth of their genealogies. This concealment, indeed, was the rationale for sealing and revising the birth certificate.

Is a birth certificate that is revised to reflect a change in legal parentage a lie? It is a genealogical lie. It fractures the idea of identity into legal and genealogical components, setting them at odds. It undeniably enables deception of a most damaging kind, as we can judge from the testimony of late-discovery adoptees and the donor-conceived.

On the other hand, the birth certificate has never functioned as a perfect genealogical document. This is a consequence of the varied circumstances under which people report births in hospitals, birthing centers, and private homes. Not all birth certificates list a second parent. (My original birth certificate did not include my father’s name.) And “NPEs” (Non-Paternity Events) are as old as birth certificates themselves. People misattribute parentage innocently, and also deliberately. There are no ironclad safeguards against a non-genealogical parent’s name appearing on any document that certifies parentage.

Many of us who have experienced genealogical severance demand an end to legal practices that obfuscate and conceal our genealogical identities. Some adoptees speak of redesigning vital records to record genealogical and legal parentage separately, hiding neither. The birth certificate, as it currently functions, fails to do this. But, given the possibility of NPEs and of ignorance of a child’s paternity, is it even possible to create a record-keeping system that safeguards a person’s genealogical identity?

It is hard to see how any such system would not be extremely coercive. If a government were to impose a requirement of genetic testing to certify and record biological parentage, the costs in loss of civil liberties—especially individual privacy rights!1—would be extreme. It is too easy to imagine the abuses that governments would make of a comprehensive system of genetic surveillance. If there is a noncoercive way to furnish every person with the whole truth of their genealogical parentage, I can’t imagine it.

Given this, we should carefully consider what we mean by saying that people have a right to their genealogical identities. Even if, as I believe, genealogical loss is a disadvantage (for reasons of family health history alone), there are limits to what we can require in restitution. I learned my biological father’s name when my birth mother told me. Perhaps she had a moral duty to do that—but only because she knew his identity. What system of recordkeeping can ensure that?

So even if we reimagine the birth certificate as a strictly genealogical document, disentangling that function from the function of recording legal parentage, we cannot guarantee that it will faithfully serve as one. We cannot make everyone genealogically whole. We cannot eradicate genealogical secrecy.

Nevertheless, we can still insist that no one has a right to keep genealogical secrets from the very people those secrets concern. We can still oppose practices and institutions that impose genealogical secrecy for secrecy’s sake. If the primary function of the birth certificate is to record legal parentage, we can still insist that all the records that the state keeps about a person’s ancestry remain available to them. Make it a formal lie that does not conceal the substantive truth.

The right to genealogical identity—as enshrined in Part I, Article 8 of the UN Convention on the Rights of the Child—is primarily negative in content. It states the following:

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

As long as births are registered,2 it is “interference” and “deprivation” to withhold genealogical information from the person about whom it is collected.3 In general, I think of the right to genealogical identity as imposing constraints on legal frameworks that would otherwise obfuscate and conceal that identity.

Our target is secrecy.