The pro-life justification for sealed records fails under scrutiny. According to the Alan Guttmacher Institute, an abortion rights think tank, the national rate of abortions for every thousand women between 15 and 44 was 22.9 in 1996. In Alaska and Kansas, these rates were 14.6 and 18.9 respectively.
The same holds true for the United Kingdom. The Alan Guttmacher Institute also reports that from 1961 until 1973 the number of abortions increased in the U.K. From 1974-1976 when Parliament was considering and eventually enacted open records legislation, the number of abortions decreased.
The adortion argument portrays women who give up children for adoption as selfish rather than as actual mothers concerned about the welfare of their child. As my mother has repeatedly told me, "It takes more love to give up a child than to keep a child." This argument also fails to take into consideration the multiple factors that lead to adoption. Additional influences such as religious beliefs, perceived social mores and family pressure all contribute to the decision to give up a child for adoption.
Sources
John C. Sonne, M.D. An Open Letter to the Pro-Life Community
Proponents of sealed records argue that if open records remove the biological parents’ right to privacy, adoptions will decrease and abortions will increase. Groups expressing official positions opposed to open records and voicing this concern include right to life groups as well as the NCFA.
Although the argument is highly speculative with regard to the United States (where the majority of states have closed records), the NCFA points to England and Wales, arguing that adoptions have dropped by ninety-three percent since those countries opened the records in 1975. This argument was also put forth by the plaintiffs in Does v. Sundquist I.
Although such statistics may appear frightening for those in favor of adoption generally, a closer look shows that this argument is factually flawed. Regarding the decline of adoptions in England and Wales, data provided by official publications in the U.K. does indeed show a decline in adoptions. Reports on adoptions between 1960 and 1984 show that the number of adoptions declined from a high of 14, 641 in 1968 to 2,910 in 1984 a decline of almost eighty-percent.
When looking at the decline in relation to open records, however, it is vital to bear in mind that the records were opened in 1975. When looking at the data from 1968-1976 one sees a decline of sixty-seven percent (from 14,641 to 4,777). Thus, adoptions were declining precipitously even before the records were opened. In fact, a look at the data from 1976-1984 shows that adoptions dropped from 4,777 to 2,910, a decline of only thirty-nine percent. Assuming, arguendo, that this reasoning on the part of proponents of sealed records shows any relation between open records and the number of adoptions, it slowed the decline rather than accelerating or causing it.
The plaintiffs in Does v. Sundquist I also claimed that an open records law in Australia had an adverse effect on adoptions. [8] Yet, once again, data shows the problems with such post hoc reasoning. In Australia, state rather than national laws regulate adoptions. It is, therefore, a closer comparison to the American model.
Data provided by the New South Wales Registry of Births and Marriages show that adoptions have been declining there since 1972. In 1967, New South Wales sealed its adoption records and opened them again in 1991. Looking at adoption data from New South Wales from 1970-1995 one sees a drop of eighty-five percent in the number of adoptions. Once again, however, it is important to look at the data before and after the records were opened. Although the decline continued after the records were opened, there was no statistically significant variation from the previous pattern of decline.
Comparison to other countries with open records does not show an adverse affect on the number of adoptions as a result of opening records. This holds true when states with open access are compared against the national adoption numbers in the United States.
In 1992, adoptions in Alaska and Kansas were higher than the national average. In Alaska, there were 53.5 adoptions for every thousand live births and in Kansas the number was 48.4 adoptions per thousand live births. The national average was 31.2 adoptions per thousand live births.
It is evident, therefore, that open records do not hinder adoptions nor promote abortions. It is important to follow this line of reasoning through though: if sealed or open records make a difference in the number of adoptions, states with sealed records should see a lower number of adoptions than those with open records. The national averages cited above seem to show this to be accurate. There is further evidence, however, that sealing records has a negative impact on adoption.
In 1960, Illinois sealed adoption records. According to the Cook County Administrative Office of Illinois Courts, adoptions decreased by thirty-eight percent between 1960 and 1978.
Sources
Eric Stern, Birth Mothers, Adopted Children Back Measure to Make Records Accessible, St. Louis Post-Dispatch, January 30, 2000, at B2.
Robyn E. Blumner, Battle Over Birth Records: Adoptees’ Curiousity About Parentage Doesn’t Trump Right to Privacy, Denver Rocky Mountain News, January 23, 2000, at 1B.
Does v. Sundquist, Amended Complaint ¶ 23
The Basic Bastard See also, Greenman: Exhibit 2
Flango & Flango, National Center for Court Statistics, How Many Children Were Adopted in 1992, 74 Child Welfare 1018, 1021-22 (1995).
Eric Heyden, Seal of Sorrow, 9 Human rights no. 3, 28, 30 (Summer 1981).
Perhaps the most compelling argument against open records is that birth parents do not want to be contacted by the children they gave up for adoption. One court has even stated that one of the reasons for sealed records is to enable birth parents to "attempt to rebuild their lives" after the child is given up. Mills v. Atlantic City Dept. of Vital Statistics, 148 N.J. Super. 302, 307, 372 A.2d 646, 649 (1977).
This argument paints adult adoptees as stalkers who show up, unwelcome, on the doorsteps of birth parents around the country to wreak havoc with now perfect lives. This argument is patently false. It presumes 1) that birth parents do not want contact with their children 2) that adoption is a process undertaken with the best interests of biological parents in mind and 3) that biological parents have a right to privacy when it comes to their offspring.
One author studied biological parents to determine their attitudes regarding the children they had given up. He reports that the majority of birth mothers he interviewed expressed feelings of loss and regret. Ninety-five percent of those he interviewed wanted their personal information updated in the adoption record. Another study, conducted in 1984 indicated that 96% of birth parents wanted to search and 66% actually had.
The common conception that most biological parents do not want to have their lives intruded upon by their biological children is a myth. Authors Judith Gediman and Linda Brown interviewed numerous birth mothers. Of the women interviewed by Gediman and Brown, only two said they did not hope or fantasize about a reunion with their children. Of those two women, one immediately invited her daughter to her house after the adoptee found her. One study reports that regardless of whether the search is initiated by the biological parents or the adoptee, the majority who are found after a search are "delighted to be found and report elation, catharsis and ecstasy." A birth mother I contacted expressed her feelings this way:
Adoption is a choice that a birthmother has to make for her circumstances. The adoptive parents carry out and finalize the birthmothers choice to give her child up for adoption. the child didn't make this decision on his/her own it was made for him/her . When that child becomes an Adult it should be his/her legal right to have all the records and information regarding his or her birth including parental information and the right to know if they have siblings. The same should also apply to the birthparents/family...
I have two wonderful, beautiful children now but they don't replace or even
take away the love I have for my daughter I have carried her in my heart for
almost 21 years and there she will remain till the day, if it comes that we
meet. My children know they have an older sister and they would love to
meet her as well as my Husband who supports me in my decision to search for
her and the others.
Courts that pretend biological parents do not want contact with their children perpetuate not only a legal fiction, but a blatant falsehood as well. See Adoption of Baby S., 308 N.J. Super 207, 705 A.2d 822 (1997) in which a birth mother tried to open the adoption records of her son in order to contact him and leave property to him. This petition was denied. See also, The Other Mother by Carol Schaefer, detailing one mother's process of surrendering her child for adoption, the problems it caused and her search and eventual reunion with her son.
Reasoning that the concerns of birth parents outweigh the needs of adult adoptees also ignores one basic and central tenet of adoption law: the best interest of the child (adoptee) controls. Adoption does not exist as a legal policy for the benefit of birth parents, but for the benefit of adoptees. There is no indication that when an adoptee becomes an adult his or her interest is suddenly usurped by perceived (and empirically false) desires of birth parents.
Notwithstanding the fact that most biological parents do not fear reunion, there are some who do. The question then becomes whether these parents have a right to privacy from their children. The answer is no.
The right to privacy is not explicit in the Constitution, but is rather a right found in the penumbra of the First Amendments and made applicable to the States via the Fourteenth Amendment. Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681 (1965) (right to privacy) Gitlow v. New York, 268 U.S. 652 (1925) (Bill of Rights applicable to states via the Fourteenth Amendment). The right to privacy includes the right to associate. Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681 (1965) citing, NAACP v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172 (1958). Some people has extracted a right not to associate from this. The Supreme Court is explicit that the right to not associate may not be applied discriminatorily (for information on why barring contact between birth parents and adult adoptees is unconstitutional discrimination, see Adoptees Have No Right To Identifying Information) by the state (see Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 462 (1982).) and has upheld the right not to associate only once in a narrowly defined decision. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338 (1995).
The right to privacy does not protect birth parents from the release of identifying information to adoptees. Doe v. Sundquist, 106 F.3d at 705, citing J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981). In no other setting are biological families kept apart simply because they are related. If a parent does not want contact with a child, the parent must show cause and obtain a restraining or no contact order. There should not be a presumed burden on the adoptee to overcome alleged privacy interests of birth parents.
Sources
Paul Sachdev, Unlocking the Adoption Files, 10 (1989)
E. Wayne Carp, Family Matters: Secrecy and Disclosure in the History of Adoption, 152 (1998).
E-mail from anonymous birth mother (Feb. 15, 2000) (on file with the author).Judith S. Gediman & Linda P. Brown, Birth Bond: Reunions Between Birthparents and Adoptees, What Happens After, 40 (1991).
LaVonne Harper Stiffler, Synchronicity and Reunion: The Genetic Connection of Adoptees and Birthparents, 3 (1992).
It is important to realize that more people are party to an adoption than the adoptee and biological parents. The adoptive parents play as crucial a role in the process as either of the other parties. Unlike the biological family and the adoptee, if the records are open and their adopted child or the biological parents searches and makes contact, they do not gain access to a family member from whom they have been separated ex lege. It would appear that they have the most to lose from open records.
Using the rights of adoptive parents as a rationale for sealed records is an argument dating back to the middle part of the twentieth century. In 1944, the California Department of Social Welfare used this position to encourage prospective adoptive parents to use an accredited adoption agency. This theme continued throughout the 1950s as states tried to encourage infertile couples who were frustrated with bureaucratic road blocks set up by agencies were drawn to alternative means of adoption.
If adoptive parents do indeed have something to fear from open records, it is difficult to explain the findings of a recent study conducted by Cornell University. Rosemary Avery, an associate professor of consumer economics and housing and a specialist in family policy and foster care studied a wide variety of adoptive parents in New York state and presented her findings in August of 1996.
According to Avery’s study, seventy-eight percent of adoptive mothers and sixty-six percent of adoptive fathers felt that an adoptee should have the right to obtain an original birth certificate regardless of when they were adopted. Adoptive mothers are more supportive than adoptive fathers are of an adult adoptee’s right to obtain an original birth certificate. Eighty-three percent of adoptive mothers, compared to seventy-three percent of adoptive fathers believe an adult adoptee should have access to an original birth certificate. Nine percent of adoptive mothers and eleven percent of adoptive fathers feel that an adult adoptee should not have access to an original birth certificate.
Although the study only included New York state adoptive parents, Avery says there is not reason to believe that New York state adoptive parents’ feelings about open records are an aberration from adoptive parents around the country. According to Avery, "[T]hese results indicate there is no justification for keeping such information from adult adoptees..."
Avery’s study is in accord with a 1994-1995 study conducted by the New York State Citizens’ Coalition for Children. In response to the statement, "NYS law should allow an adult adoptee to obtain a copy of his or her original birth certificate", 83.7 percent of adoptive parents agreed or strongly agreed. Seventy-eight point nine percent of adoptive parents agreed or strongly agreed with the statement, "An adult adoptee's right to obtain an original birth certificate should be retroactive. In other words, all adult adoptees should have access regardless of when they were adopted."
In 1996, one prospective adoptive parent put her attitude towards open records in writing:
When my husband and I first looked into adoption, we were utterly flabbergasted to find out that adults who were adopted were kept from seeing their original birth certificate, knowing who their birth parents were, and knowing their medical histories.
This struck us both as cruel, stupid, and at the very least inimical to good medical practice. Why should an adult be prevented from knowing information about his or her biological family? It makes no sense.
I firmly believe that in almost all cases, where children are adopted at a young age, the adoptive parents are the psychological parents of the child. I feel very badly for any adoptive parent who is so fearful of loosing their adult child that they would oppose open records.
Sources
E. Wayne Carp, Family Matters: Secrecy and Disclosure in the History of Adoption, 13(1998).
Cornell Science News: adoption record study
"Its Time To Speak for Ourselves": Adoptive Parents' Attitudes Toward Openness in Adoption Records: A Study of New York State Adoptive Parents Conducted in 1994-1995 by the New York State Citizens' Coalition for ChildrenAdoptive Parents Support Open Records
The NCFA opposes open records and instead favor registries. Given the overwhelming numbers of those involved in the adoption triangle who favor open records, it is difficult to understand this position. Perhaps their position is based on their view that adoptees who search have psychological problems and are disatisfied with their adoptive families.
According to The Adoption Factbook, published by the NCFA in 1989, adoptees who search have lower self-concepts, lower self-esteem, and less self-satisfaction than adoptees who don't search. Adoptees who search (again according to the NCFA) are not as content with their adoptive families or the adoption process as adoptees who don't search. They also have less satisfactory familial relationships than adoptees who don't search due to poor communication about the adoption on the part of adoptive families.
The NCFA attributes the disatisfaction with the adoption process to psychological difficulties on the part of adoptees who search or adoptive parents. It ignores that disatisfaction with the adoption process may be tied to state laws that prevent adoptees from searching for their families.
As an adoptee, I am extremely content with my adoptive family. We were not wealthy, but at no point in my life did I ever feel unloved by my adoptive parents. They have supported me throughout my life (including my decision to search). They have helped me through traumatic times that could tear apart any biological family. My adoptive parents are my parents. I have always known I was adopted and my adoptive parents taught me that my biological mother loved me so much that as a young single mother in the early 70s, she realized I would be better taken care of in a financially and emotionally stable family. They have always been open and honest with me regarding any questions I had about the process.
The only disatisfaction I have with the adoption process is the State of Iowa that determined 30 years before my birth that I had no right to my original birth certificate and that it was a crime for anyone other than my biological family or adoptive family to give me identifying information. Although I am bipolar (manic-depressive) it is impossible to attribute this condition to being adopted and wanting to search. It could be genetic (although I don't know for sure because I can't contact my biological family to find out).
My brother (also adopted, from a different biological family than my own) has no interest in searching. We both have very postive attitudes towards adoption. He does not intend to search for his biological family and has never expressed an interest in it. Regardless, he has no objections to being found and supports and adoptee's right to find out where they came from.
No other group is denigrated and maligned for its efforts to search for its roots. To maintain that adoptees who search are psychologically unbalanced, have poor adoptive families and are general ingrates casts disrepute not only on adoptees, but the adoption process as well.
Sources
Adoption Factbook: United States Data, Issues, Regulations and Resources, 110 (National Committee for Adoption ed., 1989).
It has been asserted by opponents to open records that birth parents have entered into a contract with the state and the state should honor that contract by keeping the records sealed.
If a contract is "unconscionable", it is unenforcable in court. One of
the reasons to find a contract unconsionable is that one party to the contract had no
choice but to agree to the contract. Birth parents have no choice when they
"contract" with the state. They cannot say, "I will give up the child
if I am able to contact him later." They are stuck with the state's laws.
Either they give up the child and agree to the secrecy or they don't abide by the
law.
The argument the NCFA and others use is based on a concept called "reliance".
If two or more parties enter into a contract, they have a right to rely on
the other parties. For instance, if Person A agrees to author a webpage for Person B
in exchange for $200, A has a right to expect B to pay him $200 when the webpage is done.
Person B has a right to expect A to author the webpage if A receives the $200.
Person A may have passed up other employment opportunities to author the webpage
for B and if B fails to pay A when the work is done, A has lost out on the $200 and the
money A could have earned by working for others. Person A could sue B for breach of
contract and win because of the reliance interest.
The problem with using the reliance interest in the adoption "contract" setting
is they have to prove there was a meeting of the minds by the contracting parties (the
state and the birth parents). I asked one birth mom if she thought she entered into
a contract with the state. She said:
To be truthful, I was so shocked and stunned by the whole situation that
I
don’t remember much of anything. I was young enough [at the
time my child
was born] to be under the control of my parents, the home, the
doctor, etc.
And I just did what they told me. The only clear impression that
I had was
that I was giving up my daughter forever...
In addition, studies were done to see if birth mothers thought they had entered into a
contract with the state. In a study conducted by the Children’s Home Society of
California, fifty-three percent of the mothers interviewed did not believe that they had
made a contract. If there was a contract, it was the mental construct of
social workers that felt the birth mothers wanted to remain anonymous.
A legislature may also declare a contract unconscionable by passing legislation repealing
any such contracts. This is what happened in Tennessee, happened (by way of
referendum) in Oregon.
"Undue influence" means that one of the parties had extreme power
over the other party. As I noted above, birth parents have no power when it comes to
the "negotiating". The state exercises undue influence over the bparents
and therefore, even if a contract did exist, it would not be enforceable in court.
These legal doctrines would override any written contracts the NCFA could produce. Even
though birth mothers may not have signed documents, they could argue that there was a
verbal contract with no written evidence of the contract. Such
contracts are common and legal. The problem with that reasoning is that for a
contract to be formed the two parties must agree freely on the provisions of the contract.
Aside from all of this, there is the other problem of consideration.
"Consideration" is that values that contracting parties exchange. Although
some would argue that the consideration in an adoption "contract" is the
bparents relinquishment of parental rights and the aparents agreement to raise the child.
This is not true. If a contract exists in adoption, the consideration is the
child. The 14th Amendment says anyone born or naturalized in the United States is a
citizen (not property). Therefore,people cannot use human beings as consideration.
(We usually call contracts with human beings as consideration slavery which is outlawed by
the Thirteenth Amendment).
Adoptees who search for their biological family are thought to be just curious. Because this is "just curiousity" the rights of adoptive parents and birth parents are thought to trump the adoptee's desire to know.
Adoptees who search though, are more than just curious. Adoptees often suffer from feelings of isolation and disorientation. These feelings are typical for all adolescents (and therefore should not be attributed to psychologically unbalance adoptees) who are trying to establish autonomy from their parents. It is a natural part of maturing that one questions one’s identity and place in the world.
For the adoptee these questions are compounded because he has no contact with his biological family. He cannot look around at a family reunion and see whom he looks like and whose traits he has inherited and thus may feel like an outsider. This phenomenon is known as "genealogical bewilderment".
It is difficult to understand how statutory regimes that seal adoption records from adoptees further a state interest in adoption. Among the reasons for sealing the records is to allow the adoptive family to bond and form a cohesive unit. If preventing the adoptee from obtaining information about his roots contributes to feelings of genealogical bewilderment, a sealed record policy actually acts against incorporating the adoptee into the family psychologically.
This is not to say that adoptees are generally not happy with their adoptive families. A 1994 study conducted by the National Institute of Mental Health indicated that many adoptees have excellent self-esteem and were overwhelmingly happy with their adoptive families. Even adoptees that are entirely satisfied with their adoptive families exhibit a curiosity about their origins though.
The same study reported that fifty-seven percent of the males and seventy percent of the females expressed an interest in meeting their biological parents. Of those adoptees who expressed an interest in meeting their biological parents, only ten percent thought about them often or considered searching for them.
Other studies, however, have shown that emotional illness is more common in adopted children than biological children. This proclivity to emotional illness among adoptees is attributed to the confusion created by the lack of knowledge about their origins, not to the simple fact that they are adopted.
It is possible that there is an answer to this issue of an adoptee’s questions about origins short of unsealing the records to them as adults? An obvious choice is duplicity. If the adoptee was adopted at a young enough age that he cannot remember any parents other than his adoptive parents, why even inform him he was adopted? This would seem to resolve the issue of questions about one’s roots.
This position is wrought with more problems than solutions though. If the state has an interest in encouraging adoption (and I believe it does), to further a policy that encourages lying and thereby attaches a measure of shame to the adoption process counters that policy.
There is also some evidence that lying is not in the best interest of the adoptee. Rona Barth, an adoptee from Chicago was told that her biological father had died, as had her mother. She refused to accept this lie and was "tortured" by questions about why her biological mother would give her up and what her siblings would look like. She ran away from home numerous times as an adolescent and was under psychiatric care for many years. Although her case does not establish that allowing adult adoptees to access their records when they reach maturity will solve every issue an adoptee faces, it does illustrate that hiding one’s past is not in the adoptees best interest.
Proponents of closed records argue that it is in the adoptee’s best interest to keep information from them. Yet numerous adoptees suffer from the aforementioned mental issues as a result of not having information not because they are adopted (as averred by the NCFA). It is difficult to conceive how causing further problems for adoptees is in their best interest.
Sources
Robyn E. Blumner, Battle Over Birth Records: Adoptees’ Curiousity About Parentage Doesn’t Trump Right to Privacy, Denver Rocky Mountain News, January 23, 2000, at 1B
2 Joan Heifetz Hollinger et al., Adoption Law and Practice § 13.01[1][c] (perm. ed. rev. vol. 1999).
Ronald J. Lajoie, Access to Birth Records: An Adult Adoptee’s Psychological Need and Constitutional Right, 21:3 New Hampshire Bar J. 103, 111 (1980).
Robert McClory, Who Am I?, 10 Student Lawyer no. 5, January 1982, 10, 13.
This section is tied to that above. Those who assert that adoptees have no "right" to receive identifying information misinterpret what it means to have a legal right. Adoptees, like all U.S. citizens have certain rights as defined in the Constituion.
The NCFA states one justification for sealed records as "protecting the adopted child from potentially disturbing facts surrounding his birth." The Mills court (Mills v. Atlantic City Dept. of Vital Statistics, 148 N.J. Super. 302, 372 A.2d 646 (1977)) found protecting an adoptee from the illegitimate status of his birth to be one of the rational bases for upholding closed records during a constitutional challenge. Other courts are in agreement that illegitimacy is one of the reasons for sealed statutes. See Application of Anonymous, 390 N.Y.S.2d 779, 781 (1976), Kirsch v. Parker, 375 So.2d 693, 695 (La. Ct. App. 1979), ALMA Soc. Inc. v. Mellon, 601 F.2d 1225, 1234 (2nd Cir. 1979).
In the context of other rights, such as inheritance and parental support rights, the Supreme Court has consistently held that states may not punish children born outside of wedlock in the name of advancing a state policy of legitimacy. In 1968, the Court struck down a Louisiana statute that prohibited illegitimate children from recovering for the wrongful death of their biological parents. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509 (1968). In the same term, the Court also struck down a similar Louisiana law prohibiting biological parents from recovery in the event of the wrongful death of their offspring. Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515 (1968). In a case dealing with a Georgia statute that only allowed a biological father to sue for wrongful death of his illegitimate child if the mother was deceased and he had legitimized the child before the child’s death, the court upheld the law by a plurality. Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742 (1979). The law was upheld because the law was not based on illegitimacy, which would have been an invidious classification. Observing that although state statutes have a strong presumption of validity, the court cautioned that not all state statutes were entitled to that presumption. This presumption is not valid if the state uses suspect classifications or "other immutable human characteristics".
In 1972, the Court struck down yet another Louisiana statute, this one denying worker’s compensation to illegitimate children that had not been legitimized. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400 (1972). The personal rights involved were sensitive for two reasons. First, they involved family relationship and secondly, they punished children who were not responsible for their birth status. The court found that such classifications run contrary to basic fairness and higher scrutiny would be applied to such classifications.
Intermediary scrutiny as officially adopted by the Supreme Court for classifications based on illegitimacy in 1988. Such classifications had to have more than a rational basis. In order to be upheld they must have a "substantial relationship to and important government interest." If closed records are based on circumstances surrounding an adoptee’s birth (and it appears that they, at least in part are), then a rational basis test is inapposite when reviewing these statutes.
Aside from the classification of adoptees by the state as illegitimate, there are other constitutional rights implicated when the state seals adoption records. By sealing adoption records, the state, inconsistent with the First Amendment, abridges adoptees right to free speech.
The Supreme Court has observed that freedom of speech is not confined to the right to speak or print. Implicit in the rights of free speech and press are the rights to "receive, the right to read... and freedom of inquiry." Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680 (1965). One commentator observes that the protected right to receive encompasses freedom of inquiry. The right to form "the self" includes some choice about what wishes to be exposed to. If one accepts Wegar’s thesis that the emerging adoptee search movement is about a defense of identity, it is arguable that forming one’s "self" is part of that identity.
A counter argument to this position is that the right to receive only applies to public information and that adoption records do not fall into that category. (See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794 (1969), (holding that the public has the right to hear all sides of an issue).) The Supreme Court, however, has never limited the right to receive information to the public sphere. It has, in fact, held that the right to know extends to private materials. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243 (1969), (holding that the right to know extends to private possession of pornographic materials),
A further argument against open records is that they violate an adoptee’s right to privacy. The NCFA argues that only about one percent of adoptees actually searches and that those who search do so because they have a poor self-identity and a high level of dissatisfaction with their adoptive families. This argument fails to take into account the number of adoptees who may want to search but are frustrated in their efforts because of laws sealing records. The NCFA argues that opening records would infringe on the privacy needs of adoptees.
Given the overwhelming majorities of adoptees that either express an interest in searching, or actually do search, coupled with studies showing that when a party separated from a biological family by adoption is elated to be found, it is doubtful that adoptees feel open records violate their right to privacy.
There are no reported cases of adoptees suing agencies or birth parents for invading their privacy by providing identifying information. None of the plaintiffs in Does v. State,164 Or. App. 543, ___ P.2d. ___ , 1999 WL 1261371(1999) or Doe v. Sundquist, 106 F.3d 702, 704 (6th Cir. 1997), cert. denied, 522 U.S. 810, 118 S. Ct. 51 (1997), both challenging open records statutes were adoptees.
Although adoptees do not appear to fear for their privacy rights at the present, this does not mean that no adoptee will ever feel open records violate his privacy rights. As is the case with birth parents, there is no constitutional right to privacy from biological family members. If an adult adoptee does not want to be contacted by his biological parents, it is he, not the party seeking contact, who should bear the burden of showing why contact should not occur.
The reasons for an adoptee bearing the burden rather than the biological family member seeking contact is analogous to why the biological family should bear the burden if the adoptee is the searching party. In no other family law setting is one party barred from contacting another party simply because of the fact that they are related.
Sources
Adoption Factbook: United States Data, Issues, Regulations and Resources, 107 (National Committee for Adoption ed., 1989).
John E. Nowak & Ronald D. Rotunda, Constitutional Law § 14.16 (4th ed. 1991).
Steven J. Heyman, Righting the Balance: An Inquiry Into the Foundations and Limits of Freedom of Expression, 78 B.U. L. Rev. 1275, 1238 (1998).
Katarina Wegar, Adoption, Identity and Kinship: The Debate over Sealed Birth Records, 79 (1997).
Melissa Arndt, Severed Roots: The Sealed Adoption Records Controversy, 6 N. Ill. U. L. Rev. 103, 109 (1986).Carrie Ferguson, Adopted Children Get Access to Their Files Starting Next Week, The Tennessean, June 24, 1996, at A1
The most common compromise on open records is a registry system. There are two types of registries: passive and active. Twenty-seven states have a passive registry system.
In a passive registry system, both parties are required to register with either a public or private agency. Unless both parties register, identifying information will not be released. This is the approach favored by the NCFA.
One of the problems with passive registries is that the parties may not be aware that such a registry exists. Adoption agencies will not publicize the existence of such a registry. One birth mother has described such registries as "under-staffed, under-funded and under-publicized". Therefore, only those parties with knowledge of the state’s adoption law will know about the existence of a passive registry.
In Iowa, for example, the biological parents may have their consent placed in the adoption file. An information packet will be provided to the biological parents, but only upon request of the biological parents. Therefore, if the biological parents do not know they can request such a packet, they will not receive the information. Because it is unlikely that persons making the highly emotional decision to surrender their parental rights in a child will be intimately knowledgeable of Iowa law, the responsibility seems to rest entirely on the attorney representing the biological parents.
In addition, this provision was not added to the Iowa code until 1992. All biological parents who surrendered a child between July 4, 1941 (when the records in Iowa were sealed) and July 1, 1992 when this provision came into effect were not even given the option of requesting such information. There are no provisions making the statute retroactive and it is unlikely that any efforts were made to contact the biological parents who gave up their children in the preceding fifty-one years.
It is also ironic that under Iowa law, the provisions of the adoption code are to be liberally construed with the best interest of the child in mind. Notwithstanding this statutory declaration, there is no requirement that the adoptee ever be informed of his right to consent to the release of identifying information.
Passive registries place the entire burden on the searching party with the slim hope that the parties being sought know about the registry and have registered. In other words, passive registries depend entirely on the unlikely assumption that all the parties to the adoption will be knowledgeable about state adoption law.
One alternative to passive registry is an active registry. Currently, eleven states have an active registry system. Under an active registry regime, one party registers with either a private or state agency consenting to the release of identifying information.
In Missouri, the adopted child may refer to an adult adoptee. The adult adoptee may petition the court for identifying information, but if the adoption was completed prior to 1986, the adoptive parents have an option to veto the request. This statute does not explain why the adoptive parents should have any say in attempts by an adult adoptee to contact his biological parents.
If the adoptive parents are deceased or give consent for the adoptee to search, the juvenile court or agency responsible for the adoption make reasonable efforts to find the biological parents. The cost of such a search may be assessed to the adoptee. If the court or agency is able to locate the biological parents, they confidentially communicate with the biological parents and notify them of the adoptee’s desire to contact them. At the end of three months, the court or agency will file a report including, inter alia, that they have notified the biological parents of their right to file an affidavit consenting the release of identifying information.
An active registry is better than a passive registry in that it ensures that the biological parents are aware of their right to consent to the release of identifying information. It is not an acceptable compromise to open records, however, because it still allows parties other than the adoptee to veto contact. If the adoptee’s interest is the controlling factor in adoption, it is contrary to that policy to allow anyone else to veto contact.
An active registry also assumes that an adult adoptee is incapable of contacting his biological parents and interacting with them without state intervention. Once again, if the adoptee’s best interest is the controlling factor, there is no reason to assume that an adult adoptee is unable to determine his best interest. In addition, an active registry still has the problem of allowing biological family members to prevent contact without showing cause. As I have mentioned before, this would not be tolerated as a matter of public policy in any other familial relationship.
Registries do not allow adoptees to make contact with their biological parents on their own initiative unless the biological family does not consent. Adoptees still face barriers to resolving issues crucial to identity formation, the state still seeks to protect them from the circumstances surrounding their birth and registries also allow alleged privacy rights of biological parents to outweigh the rights of adoptees.
Sources
Adoption Factbook: United States Data, Issues, Regulations and Resources, 108 (National Committee for Adoption ed., 1989).
Mutual Consent Voluntary Registries
Voluntary Mutual Consent Adoption Registries
