There’s a new law review article that blasts the argument for “birthparent privacy” rights.
Hughes, Susan Whittaker, “The only Americans legally prohibited from knowing who their birth parents are: A rejection of privacy rights as a bar to adult adoptees’ access to original birth and adoption records.” Cleveland State Law Review 53, 3 p. 429-461.
Here’s an excerpt:
Constitutional privacy has two prongs. As the Supreme Court in Whalen v Roe explained, first, it involves an individual’s freedom from governmental interference with fundamental rights such that the individual is able to make decisions surrounding important matters independently. Secondly, constitutional privacy includes an individiual’s right to be free from government’s gathering and disclosure of his or her personal information.
When examined against these two prongs, birth parent privacy assertions lack sufficient weight to be afforded the protection that they have enjoyed. Privacy assertions made under the first prong, for example, do not work because open access statutes will not impede the exercise of fundamental rights and because adoption rights, as statutory creations, do not give rise to privacy protections only afforded to fundamental rights. Privacy assertions made under the second prong fail because open access statues do not violate a birth parent’s right to informational privacy. For these overarching reasons, and for the supporting reasons outlined below, birth parents privacy claims against open access statues should not given the legal weight that they have historically enjoyed , and adult should have unrestricted access to their original birth and adoption records.
On the downside Hughes discusses, though not particularly enthusiastically, the contact veto as an alternative solution to birth parent fears. I don’t remember seeing reference to contact preference forms, and I need to go back and read the article again. Hughes also quotes Bastardette and Bastard Nation documents in footnotes in the last few pages.
Nonetheless, I find this article very positive, especially in its discussion of fundamental rights v statutory creations, and highly recommend it to anyone working to free our records from the state.