V. Conditional Access Legislation and other Legislative Compromises
Conditional access legislation, which includes disclosure vetoes, contact vetoes and intermediary systems, has often been used by adoption reformers in their efforts to try to win over legislators and pass bills. Some reformers claim that these conditional access bills serve as intermediate steps to true open records legislation. History, however, tells a different story. Once laws are passed, legislators are reluctant to revisit the issue of records legislation, which can result in future legislative changes being stalled for years or even decades. Once they do revisit the issue, there is no indication that legislators are more inclined to openness than before the conditional access legislation passed, and in many cases that legislation itself creates an impediment in terms of legal precedent.
Unrestricted open records for adult adoptees is the norm in most of the rest of the “Free World” and in Alaska, Kansas, Oregon and Alabama. Conditional access legislation is the result of reformers allowing the debate to be framed in the opposition’s terms. Access to one’s birth certificate is a basic civil rights issue. Veto and intermediary systems skirt the issue by framing the debate in terms of birth parent privacy. In Doe v. Sundquist, which challenged a Tennessee semi-open records law (it contains both contact and disclosure vetoes) on the grounds that it violated birth parent privacy, the Sixth Circuit Court of Appeals stated that “if there is a federal constitutional right of familial privacy, it does not extend as far as the plaintiffs would like.” The opinion 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.”
If there is no right to privacy that extends to birth parent anonymity, then there is no reason why an adoptee’s right to access their original birth certificate should be impeded by special governmental controls to protect birth parents. Disclosure vetoes, by which an adoptee may access their original birth certificate only if their birth parent does not object, appear to vest birth parents with such a “special” right to privacy, making it all the more difficult for adoptee rights advocates to argue that the law has never guaranteed anonymity to birth parents. Delaware passed a disclosure veto law in 1998 over the objections of Bastard Nation.
Many states have intermediary systems, which authorize an agency worker or court-appointed agent to access the adoptee’s records and to perform a search for biological relations on their behalf. Permission for contact with and/or divulgence of identifying information to the adoptee is solicited from the birth parent, and the adoptee is furnished with no information or records if the birth parent declines. This system takes all control from the hands of the adoptee and is designed to facilitate reunions rather than restore adoptee rights.
Contact vetoes, whereby the birth parent may file a statement that they do not wish to be contacted by the adoptee and by which the adoptee must abide or be subject to criminal penalties, are a violation of an adoptee’s right to due process and equal protection under the law. Conditional access legislation in the form of the contact veto implies that adoptees and birth parents are not capable of handling adult contact. If either party in an adoption does not wish contact, they can simply say no, as in any other adult situation. If they feel they are being unduly harassed, they can use the same remedies at their disposal as other citizens. Traditional no-contact orders and orders of protection are issued via court order after a person has demonstrated a pattern of threatening or abusive behavior. Even then the person who has the order issued against them has the right to answer and face their accuser in a court of law. Contact vetoes, however, are issued based solely on the adoptive status of an individual and are without legal recourse or appeal. In open records states where no contact veto exists (Kansas, Alaska, Oregon and Alabama), there are no reports of incidents that would demonstrate a necessity for special protection of the birth family.
Contact veto systems, which are opposed by Bastard Nation, exist in North America in British Columbia, Colorado and Tennessee and sprang from similar laws originating in the Australian territories, most notably when New South Wales passed its Adoption Information Act of 1990. Queensland has a similar veto law. Violating a contact veto in New South Wales carries monetary penalties as well as jail time. Similar penalties exist in the veto systems present in North America.
In contrast, a contact preference system does not legally bind the adoptee to abide by the request of the person filing their contact preference form (CPF). Such a system simply permits a birth parent to express their wishes concerning contact and does not place a condition on access or criminalize an adoptee unfairly. CPFs are an acceptable compromise to Bastard Nation and were written into Bastard Nation-supported open records laws in both Oregon and Alabama as amendments to forestall worse provisions being added.
It can be dangerous to write a contact preference system into proposed legislation from the beginning, however, as such a scheme can quickly be amended into a veto. Amending proposed open records legislation with a contact preference provision should only be done when activists and their sponsor have a close and trusting relationship and when the legislation can be assured of a better chance of passage with the sole addition of the contact preference amendment. Activists are encouraged not to include CPFs in ballot measure texts, but rather once an open records measure has passed to use the CPF to head off any more dangerous legislative tinkering.
Age of access is another issue which activists often have to contend with in lobbying open records legislation or writing ballot measures. There are three common ages of majority used in North America upon which a person acquires all (or most of) the rights and responsibilities of being an adult. These are eighteen, nineteen and twenty-one. Bastard Nation therefore supports unconditional access legislation that sets the age of eligibility at any of these three levels. In other parts of the world, Bastard Nation supports setting age of access to correspond with a country’s general trend in age of majority law.
Adoptees have a right to access the records of their birth in the same manner as any other citizen; any legislation that is less than access on demand, without condition, is a violation of their basic civil and human rights. Conditional access legislation is an affront to the dignity and self-respect of adopted persons; in the case of contact vetoes they are treated as criminals, in the case of disclosure vetoes they are treated as perpetual children who must have their birth parents’ tacit permission to access their own birth certificates, and in the case of intermediary systems they are treated as incompetent to manage their personal affairs.
