FriendBurst Blog

XI. Constitutional Issues and Open Records for Adult Adoptees

Court challenges by adoptees questioning the effect of sealed records law on civil rights and the CONSTITUTION OF THE UNITED STATES:

Yesterday’s Children, an Illinois adoptee activist group, filed a class action suit in federal court in 1975. Their contention was that sealed records violated their constitutionally

protected rights as articulated in the First, Fifth, Ninth and Fourteenth Amendments to the Constitution of the United States. The court declined to exercise jurisdiction over the claims

on the grounds that the issues presented were ones of social policy best left to the state and that Illinois law on the issues was not developed enough to warrant federal review. In other

words, the proper venue for challenging sealed records was state court, not federal court. Yesterday’s Children appealed all the way to the United States Supreme Court, which declined

to hear the case in 1978. Yesterday’s Children v. Kennedy, 569 F.2d 431 (7th Cir. 1977) cert. denied, 437 U.S. 904, 98 S.Ct. 3090 (1978).

ALMA (The Adoptees’ Liberty Movement Association) filed a class action in federal court in New York in 1977. ALMA argued that sealed records violate the First, Fourth, Ninth,

Thirteenth and Fourteenth Amendments. Their arguments were: 1) the interest of an adoptee in learning the identity of his or her origins is a fundamental right protected by the Due

Process clause of the Fourteenth Amendment; 2) adult adoptees are a suspect or “quasi-suspect” class protected by the Equal Protection clause from discrimination; 3) sealed records

violate the Thirteenth Amendment’s prohibition against slavery because, in abolishing parental relations, they impose on adult adoptees a “badge of slavery”; (4) sealed records deny

adoptees the right to privacy accorded certain aspects of family life and procreation; and (5) sealed records deny adoptees the right to acquire useful information, which is a corollary

to the right of free speech protected under the First Amendment. ALMA also lost at all judicial levels. ALMA Society Inc. v. Mellon, 459 F.Supp 912 (S.D.N.Y.1978), aff’d, 601 F.2nd

1225 (1979), cert. den. 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426.

It appears from these cases that federal courts will not be easily amenable to constitutional challenges against state adoption laws. In general, courts defer to the legislative process.

That is why, as the cases described below demonstrate, it is usually easier to defend a law once the law is passed than to have an existing law declared unconstitutional.

Court challenges to STATE LAWS opening adoption records:

Tennessee passed a substantive semi-open records law in 1996. This law was challenged in both federal and state courts. At the federal level the plaintiffs — two birth mothers, an

adoptive couple and Small World Ministries — asserted that opening records to adult adoptees violated their right to privacy, their parental rights and their right to equal protection as

guaranteed by the Fourteenth Amendment to the United States Constitution.

Judge Nixon of the United States District Court sided with the defendants, who argued that the new law opening records did not violate constitutional rights to familial and reproductive

privacy and privacy against disclosure of confidential information. With regard to familial privacy, Judge Nixon explained that “[p]laintiffs’ claims are more accurately analyzed in

terms of the release of confidential information, rather than in terms of familial privacy. The Act does not directly impinge upon birth parents’ rights to subsequently marry, have, and

raise children as they see fit, or upon adoptive parents’ right to raise their adoptive children as they see fit. Thus, the Act does not fall within the scope of a Constitutional right to

familial privacy and autonomy as deemed by case law.” Doe v. Sundquist, 943 F. Supp. 886, 893-94 (M.D. Tenn. 1996). Judge Nixon also rejected plaintiffs’ argument that the right to

relinquish a child for adoption was analogous to the right to an abortion and thus was a “reproductive choice” subject to constitutional protection. “[The open records law does] not

interfere with a ‘reproductive right of privacy,’ since [it] fail to impinge upon a woman’s right . . . to carry a pregnancy to term . . . Since the [open records law] does not prohibit

adoption, it cannot be deemed analogous to direct government restraints on private, fundamental decision making [such as laws that criminalize abortion].” Id. at 894-895. Finally,

Judge Nixon explained that, although the Constitution affords protection against certain government intrusions into private matters, “the protection of a person’s general right to

privacy . . . is . . . left largely to the law of the individual states.” Id. at 895.

The plaintiffs appealed to the Sixth Circuit Court of Appeals, which affirmed Judge Nixon’s decision and his reasoning. Notably, the Court explained that “[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. . . . .[in passing its open records law], [t]he Tennessee

legislature has resolved a conflict between the interest [of adoptees in knowing the circumstances of their birth] and the competing interest of some parents in concealing the

circumstances of a birth.”106 F.3d 703, 705 (6th Cir. 1997)

The plaintiffs appealed to the United States Supreme Court, which denied certiorari (declined to hear the case) in 1997, upholding the Sixth Circuit Court decision and ending the

federal case. The Supreme Court of Tennessee also rejected challenges to the law under its state constitution, and the law went into effect. Doe v. Sundquist, 2 S.W. 3d 919 (1999)

Measure 58, a ballot initiative passed in Oregon in 1998, approved the unconditional opening of original birth certificates to adult adoptees upon request. Immediately after the

election, Measure 58 was challenged in court. Six anonymous birth mothers represented by an attorney with support from the National Council For Adoption, an anti-open records

lobbying organization, filed suit in state court, claiming that open records violated contracts of anonymity made at the time of relinquishment’s as well as their right to privacy. This suit

was dismissed in mid-1999. Judge Lipscomb stated, “this court may not set aside Measure 58 unless it runs afoul of the Oregon or United States Constitutions. It is my conclusion that

it does not. Even assuming birth records to be an intimate personal matter, the effect of Ballot Measure 58 is only to give access to the person born, not to the general public. And

significantly, there was no privacy or confidentiality at all which was attached to adoption records at the time of the enactment of either Constitutions.” Does v. Oregon, Summary

Judgement.

The Oregon Court of Appeals affirmed the lower court’s decision, holding that birth mothers have no constitutional guarantee of privacy regarding the fact that they relinquished a

child, despite promises they may have received that their identities would be protected. Does v. State of Oregon, 164 Or. App. 543, 993 P.2d 833, 834 (1999). The Court refused to

extend an earlier stay blocking the law from taking effect, leaving the United States Supreme Court as the only option for the opponents. In May 2000 the Supreme Court rejected the

six anonymous birth mothers’ request to stay the law. After nearly two years of court battles, Measure 58 went into effect.

GLOSSARY

Right to Privacy:
Sealed records proponents claim that birth parents have a right to remain anonymous from their offspring and often articulate this claim as stemming from a constitutional “right to

privacy.” However, the courts have generally determined that the federal constitutional right to privacy means protection of individuals from government intrusion. A number of states

have explicit right to privacy provisions in their constitutions that may provide greater protections than those provided under the federal constitution.

Due Process:
No state may deprive a person of life, liberty or property without due process of law — that is, people must be given adequate notice and a fair opportunity to be heard — and no

state may deny to any person in its jurisdiction equal protection under the laws. The principle of due process is found in the Fifth and Fourteenth Amendments.

Equal Protection:
The Fourteenth Amendment of the United States Constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the law. This does not

necessarily mean that all people must be treated the same, however. State legislation can draw distinctions between persons so long as those distinctions are rationally related to the

purpose of the legislation. For example, a state legislature can decide to make certain kinds of aid available only to those persons whose income does not exceed a particular amount.
Generally, the question of whether the equal protection clause has been violated only arises when a state discriminates against a person or persons either in their exercise of a

“fundamental right” (that is, a right explicitly or implicitly granted under the Constitution, such as the right to free speech or the right to practice one’s religion) or by denying rights

based on a “suspect” or “quasi-suspect” classification as those classifications have been defined by the courts (for example, race or ethnic origin).

*   Uh huh Lemur……whats all this then…..?

Well basically this is my questioning the constitutionality of sealed adoption records.
Here’s some more info you may want to read….

IX. Do Birth Parents Have A Right to Privacy?

One of the main concerns raised by those who oppose opening records to adult adoptees is that doing so violates their birth parents’ right to privacy. Open records proponents have long

argued that there is no right to privacy that extends to birth parent anonymity, and on February 11, 1997, the Sixth Circuit Court of Appeals handed down a decision confirming this

view. [106 F.3d 703 (6th Cir. 1997)]

In 1996 the Tennessee legislature passed a law granting certain adult adoptees access to their original birth certificates, subject to contact vetoes and significant exception clauses. The

law was halted by a court injunction when a group of birth mothers, adoptive parents and an adoption agency filed suit claiming the law violated their constitutional rights under both the

Tennessee and Federal Constitution. The federal case ended in 1998 when the United States Supreme Court declined to overrule the Appeals Court ruling in favor of the defendants and

open records. The courts rejected the plaintiffs’ claim that their right to privacy was infringed upon, stating, “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. Such records have myriad purposes, such as furthering the interest of children in knowing the

circumstances of their birth.” The judges of the Sixth Circuit Court further found that “if there is a federal constitutional right of familial privacy, it does not extend as far as the

plaintiffs would like.” The court also cited a 1981 decision in which the appeals court found that “the Constitution does not encompass a general right to nondisclosure of private

information.” More directly, the Court found that the interest of an adoptee to know who his or her birth parents are is “an interest entitled to a good deal of respect and sympathy.”

The right to privacy, an implicit right that is not found specifically within the United States Constitution, requires case law to flesh it out and define it further. Our nation’s courts have

spoken clearly that the right to privacy does not extend to withholding birth information from the very person to whom it primarily pertains — the adoptee.

Birth parents could have had no reasonable expectation of anonymity. The original birth certificate is sealed when the adoption is finalized in court, not when the birth mother signs

relinquishment papers. A child relinquished but never adopted has an unsealed birth certificate. If protection of the birth mother were intended, the original birth certificate would be

sealed upon termination of her legal relationship to the child, not at the beginning of the legal relationship of the adoptive family. Nearly all states have provisions for opening adoption

or birth records for good cause without the consent or even notification of the birth parent. Birth mothers signed irrevocable relinquishment forms, but there have been no contracts

produced promising that an adoptee’s original birth record would remain sealed.

Despite the finding that birth parent privacy rights do not extend as far as keeping their names secret from adoptees, opponents of open records have continued to claim that some birth

parents, particularly women, would be harmed emotionally if they were to be contacted by a relinquished child who had reached the age of majority. In addition, some reproductive

rights advocates believe that permanently sealed birth records should be an option for pregnant women who choose not to raise a child.

In reality their adult children, raised by others, are not the enemies of birth parents. Our laws and policies should not deprive one group of their rights in order to protect others from

possibly having to face the consequences of their past choices. In the event that an adoptee chooses to contact a birth parent, both people should consider the feelings and concerns of

the other. When birth records are opened to adult adoptees, a woman who relinquishes an infant will have eighteen to twenty-one years to decide how to answer a possible phone call

from that adult child. Even today, with records still sealed in most states in the United States, birth parents must consider their responses to being found, since a network of search

consultants has arisen to circumvent sealed records. Most birth parents are happy to be contacted by their adult children. A right to privacy that prevents the disclosure of birth parents’

names to adult adoptees does not exist in law or in the real world.

*Again I really have a problem with parents who wish for their names to be held in complete privacy, while the adoptee is treated less than human.

Here read some more….

The Right to Know

At many stages of a search, including the decision-making stage, you will likely encounter people who will tell you that you have no right to search. Sometimes, these people are ill-

informed clerks on power trips who will go so far as to say that searching is illegal, or that searching without an intermediary is illegal. In no state, county, province, or country, to my

knowledge, has searching for one’s birth parents been made illegal. It pays to be familiar with your particular locale’s adoption laws in order to counteract the attempts of the

uninformed, or downright malicious, to derail your efforts, or your decision making process.

You might also encounter people who will question your right to ‘disrupt’ your birth parents lives, or your right to ‘betray’ your adoptive parents by searching. Usually these people have

little understanding of adoption or searchers, but these questions might be something that you yourself have struggled with, and it pays to have answers, if for no other reason than to

feel comfortable with whatever decision you make. The facts are that the ‘right’ of adoptees to know and to search is a hotly contested issue. I personally believe that sealed records

violate the Due Process and Equal Protection clauses of the American Constitution. There are a number of interesting places to learn more about all sides of the ‘right’ to know. Two

fascinating case law studies can be found in the lawsuits of Yesterday’s Children, an adoptee activist group who filed a class action law suit in U.S District Court in 1975, and appealed

their loss all the way to the U.S Supreme Court, who declined to hear the case in June of 1978. ALMA filed in the U.S District Court for the Southern District of New York in 1977,

and lost. A concise and lucid analysis of sealed records and the law can be found in an article by Stephen A Gorman entitled, “Recognizing the Needs of Adopted Persons, A Proposal to

Amend the Illinois Adoption Act”, published in the Loyola University Law Journal 6 in 1975.
Other Fears

Either before the decision to search is made, or at some point during the search, it is likely that the fear of what comes ‘after’ will rear its ugly head. The fear of rejection from one’s

birth family is very common, and not entirely unfounded. While the number of birth mothers who reject contact is something that is difficult to pin down, most agree that it is less than

1/4, and the number of birth mothers who favor open records is consistently in the majority (See Arthur Sorosky, Annette Baran, and Reuben Pannor in “The Adoption Triangle:The

Effects of the Sealed Record on Adoptees Birth Parents, and Adoptive Parents” New York; Anchor Press/Doubleday, 1978, as well as “The Changing Face of Adoption”, a report

research project from Children’s Home Society of California, and contact Children’s Home Society of Washington State for their newest survey). In addition, in New Zealand, which

just over 10 years ago instituted a ‘reverse registry’ which opened records except in the case of a birth parent or adoptee filing a veto, only a small percentage of birth parents and an even

smaller percentage of adoptees did so, and even fewer were expected to renew the veto. Nonetheless birth fathers are far less likely to be welcoming, and the actual reaction from a

birth mother who may support contact in theory, is seldom predictable. It would behoove any adoptee who is in search to educate themselves about the experience of birth mothers in

order to better understand how they might be received, and what the best way to approach contact might be.

The fear of losing whatever identity one has crafted for oneself is also a common theme among the undecided. Just as there are those who have a need to find out ‘who they are’ through

a search, and who see race and culture as being missing elements, others, in the absence of information, created their own identities and don’t want to be hampered or confused by the

actuality. Other adoptees may see the possible addition of a birth family in their life as being an unwelcome complication. One family is often quite enough. Add to that, in laws and

friends, and suddenly another group of people with their own history, feuds, and dysfunctions, don’t seem particularly appealing. The possibility of finding poverty or addiction in one’s

birth family can also be a pressing fear.

Education about adoption issues can go a long way towards putting these fears in perspective, but it is always a good idea to temper one’s enthusiasm for the search with a hard sense of

reality as well as a will to adapt to whatever situation you might find yourself in. Keep an open mind. It is also important to carefully look at the motivations that you have and/or that

you name for searching, and consider what they mean in the event of a possible reunion. In the event that you decide to search, you might experience an emotional roller coaster (which

will be discussed in depth in future posts), you might alienate your family, friends, or significant other. You might encounter something totally unexpected and wonderful, or

unexpected and devastating. Search is never something to be entered into lightly, as Lifton says in “Lost and Found”, “Although one is never *totally* prepared, one should not tamper

with the Search until one cannot do otherwise.” (p.77). Heed this warning well.

*You know I have trouble discussing this because I just think it does not make an ounce of sense.
I think it comes down to the states and the government respecting one persons right,”the parents”, while totally disrespecting another persons rights,”the child’s”.
Actually it kinda really pisses me off, more than a little bit.
Who in the fuck has the right to keep anyone’s real name a secret !
Think about this for a minute.
That’s really a sick thing to do to anyone.
So in essence what the laws protecting birth parents are saying is ,  “yea sure have a baby and if you do not want to keep it don’t worry not only do you not have to keep it, but we will

protect your privacy in totality irrespective of the child’s rights, and total loss of basic human identify”…..?

Source:
http://www.bastards.org/

Ohhh I sense a Lemur about to go off any second now.

I am surprised I haven’t gone off yet……

Well so much for yet……………

FUCK THAT !

I will not allow you to treat me as a second rate citizen of this world any longer…nor will I sit back and allow you to treat others in that like manner !

I have the basic human rights as anyone here on this planet.
We have the same basic human rights ……….that’s right as any human does !

Do you have any idea how much that fucks up a child…?
No you don’t………
But then why would you……….?

Why. ?

Because just like most things on this planet people in general do not actually start giving a flying fuck about any specific thing until it touches them personally in some way.
That’s why.
It is the rare person who understands humanity and humanities needs without it having affected them personally and still take those considerations of their needs into account when

dealing with them.
Very…very….rare….but thank God they do exist !!!!!

And thank God they are also starting to question the reasoning that places one humans rights over another humans rights.

You know I am no spring chicken, or Lemur if you will , and still I am fighting to gain something that most humans here on this earth take for granted………..and why shouldn’t they…..?

I mean everyone has a name right ?

Wrong.

Thank  you
DL

P.S. Expect us.