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.


  1. I am so damn tired of being presented as the goat…the reason that adopted people can’t get their original birth certificates.

    While I believe that certain information is for us to share and us alone and should not be required by law, our identities should not be kept from our children. These adults are our flesh and blood and the whole idea of (natural)parent privacy is an industry construct aided by a few mothers who never were able to lift themselves above the shame that should never have been placed on us in the first place.

    As a mother of adoption loss, I am ashamed of nothing and I am glad that my daughter found me and we found my son. What they get to know about my private business is up to me to share with them and, if it is germain to their well-being, they will get all the information they require..FROM ME.

    NO WHERE in the surrender papers did I find any kind of written guarantee of privacy or anonymity. I found a lot of threatening language directed towards me should I wish to find my children that basically protected those who adopted my children. But the guarantee of privacy for natural mothers, in the majority of cases, is a myth, pure and simple.

    Yes, those OBC’s should be available to both the adoptee and the mother who was still the legal parent when those records were made. If the mothers could stop getting the bad rap and we could work together with mutual respect, that might step this process up a bit. This is one mother that doesn’t think it is right or fair that an adult is still treated like a child without rights to their own identity.

  2. I’ve not had time to analyze this article in detail, but offer these thoughts based on a first reading.

    First, as Bastardette points out, the author finds nothing legally objectionable about mechanisms such as the Tennessee contact veto. That mechanism itself gives rise to enough legal issues to require a lengthy law review article. It is unfortunate that the author apparently fails to note the many legal difficulties with a law that criminalizes contact between two adults without any prior showing that such contact will result in harm.

    Second, adopting a definition of privacy as the right to be let alone and arguing for a weighing of the relative rights of birth parents and adoptees, effectively concedes that the issue is one for our legislatures and not our courts.

    While prior law makes a legal challenge difficult, precedent frequently is modified, if not expressly over-ruled. While not universally true, our appellate courts can be intellectually lazy, sometimes following the path taken by other jurisdictions without evaluating the underlying assumptions and rationales. (Sometimes, of course, it’s simply bad lawyering.) Courts can be persuaded to see the error of their ways,even when those errors are of relatively recent vintage.

    The article also implicitly endorses the proposition that disclosure of parentage to an adult automatically causes harm to the parent(s). One need not have any experience with adoption to recognize the fallacy inherent in that proposition.

    My home state, Minnesota, is described in the article as the first state to close records. Interestingly, that closure is said to have restricted access to records by the general public, not the affected parties. This was a rational response to concerns for protection of the privacy of those involved, one which recognized the interests of all while not restricting the rights of any.

    Sadly, Minnesota has gone far beyond that point in the last 90 years. Attempts to modify the law have been presented to the legislature many times in the past decade. Earlier this week, the Senate passed legislation which would provide access to all adoptees over the age of 19, subject to a disclosure veto by a birthparent. I expect the House to pass it this weekend, and the governor to sign the bill shortly. It will take effect July 1, 2009.

    But for the author’s concession of the legitimacy of approaches such as Minnesota is about to enact, I would send a copy to the governor in hopes of giving him pause before signing the bill.

  3. Robin, it’s a good thing you’re not sitting on on the Ohio House Health Committee hearings. There has been no testimony opposed to records access (the opposition sneaks around behind the scenes).

    The committee is oh so concerned about protecting mothers from their own children. Anyone who doesn’t want the leggies’ nose in their wombs and their seals on obcs at best, is obviously heartless and doesn’t care about their “sisters” in hiding

    These mother and father witnesses are tearing their hearts out to the committee and the only comment that comes out of the committee’s mouth is pretty much “thanks for your testimony”–but what about all those women who don’t want anybody to know?

    They run strictly on mythology. They know nothing about adoption unless they are lawyers who have done adoptions. One of the chief opponents says that to keep women from having abortions, he’s promised them records would never be sealed. So, he’s an admitted liar. Or he’s lying about his promises.

    Ohio’s situation particularly makes no sense. All pre-1964 records are open; all but handful from 1996-now will be open when the kid reaches adulthood AND the huge majority of adoptions in the state are open on some level. Clearly, there is no problem for anybody but legislators and anti-aborts who think that women are stupid.

  4. well I love this, and am kind of rankled at it, why did I spend all this time blah blahing, when she could have already done it, BUT I would like to add, that the government interference is just that, usurping the right to privacy in an intimate familial matter, the gov’t has no right to decide how families deal with their relations, and sealed records in fact take that right away from separated by adoption family members.

    The right to privacy means the government will NOT decide for a family, sealed records are in direct oppoistion to this.

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