The Truth About Birthparents And The Right To Privacy

Our nationís courts have confirmed what open records proponents have long believed: That open records do not violate a birthparentís right to privacy.

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. Upon examination of the issue of opening birth records to adult adoptees, 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.

Open records proponents have long argued that there is no right to privacy that extends to birthparent anonymity, and to date the Oregon Court of Appeals (163 Or.App 543, 993 P.2d 822, 831-832 (1999)) and the Sixth Circuit Court of Appeals (106 F.3d 703 (6th Cir. 1997)) have handed down decisions confirming this view.

In 1998, Oregon voters passed Measure 58, a ballot initiative that restored the rights of Oregon adoptees to obtain their original birth certificate. Later that year, a lawsuit was filed by a small group of birthmothers seeking to invalidate the new law by claiming Measure 58 violated their constitutional rights. A Marion County Court Judge upheld the law on July 16th, 1999, saying the Oregon Constitution held no promise of secrecy to women who gave their children up for adoption:

"Plaintiffs have failed to demonstrate either any contractual right to absolute privacy or confidentiality, or any impermissible impairment of any such rights."

The Plaintiffs appealed to the Oregon State Court of Appeals, who ruled on December 29, 1999, supporting the lower court's decision and upholding the law, concluding:

".... the state legitimately may choose to disseminate such data to the child whose birth is recorded on such a birth certificate without infringing on any fundamental right to privacy of the birth mother who does not desire contact with the child."

The case ended May 30, 2000 when United States Supreme Court Justice Sandra Day O'Connor refused to continue a hold on Measure 58.

In 1996 the Tennessee legislature passed a law granting certain adult adoptees access to their adoption records, subject to vetoes and significant exception clauses. The law was halted by a court injunction when a group of birthmothers, adoptive parents, and an adoption agency filed suit claiming the law violated their constitutional rights. The federal case ended in 1998 when the U.S Supreme Court declined to overrule the Appeals court ruling in favor of open records. The courts rejected the plaintiffs' claim that their right to privacy was infringed upon, and further found that "if there is a federal constitutional right of familial privacy, it does not extend as far as the plaintiffs would like."

It is clear that a right to privacy that prevents the disclosure of birthparents' names to adult adoptees does not exist, in law or in the real world.

©2000, Washington State Open, all rights reserved

More about open records main page