Home » Currently Reading:

The Myth of the Right to Privacy as Justifying Birth Parent Anonymity in Adoptions

Proponents of sealed adoption records often argue that a birth parent’s right to privacy justifies letting them stay anonymous in adoption records. That notion overextends the constitutional “right to privacy.” It also misrepresents the meaning of “confidentiality” in adoption records, a mistake we must not make.

The United States Supreme Court addressed the right to parental privacy in Roe v. Wade, 410 U.S. 113 (1973):

• During the first trimester of pregnancy, the abortion decision must be left to the judgment of the woman’s attending physician.

• During the second trimester, the state may regulate abortion in ways reasonably related to maternal health.

• During the third trimester (viability), the state may forbid abortion except where needed to preserve the mother’s health. Id. at 163-165.

Roe v. Wade has been modified to the extent of requiring an undue burden test. But its main holding remains: By late pregnancy, the mother’s wishes are inferior to the state’s interest in preserving the infant’s health. Thus, parents lack a constitutional right to stay anonymous in the adoption context. Having open adoption records, for example, “does not impede traditional familial privacy rights such as marrying, having children, or raising children.” Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999). And: “Because a birth mother has no fundamental right under the federal Constitution to have her child adopted, she also can have no correlative fundamental right to have her child adopted under circumstances that guarantee that her identity will not be revealed to the child.” Does 1-7 v. State, 993 P.2d 822, 836 (Or. Ct. App. 1999). Anonymity, therefore, is not constitutionally required under any theory.

In fact, the United States Supreme Court rejected the notion that anonymity was needed to achieve privacy in sensitive proceedings. In Ohio v. Akron Center, 497 U.S. 502 (1990), the Court held that it was constitutional and necessary to require a minor seeking an abortion to identify herself when asking the court to bypass notice to her parents:

“…[W]e do not find complete anonymity critical. H.B. 319 takes reasonable steps to prevent the public from learning of the minor’s identity….H.B. 319, like many sophisticated judicial procedures, requires participants to provide identifying information for administrative purposes, not for public disclosure.” Id. at 513.

In addition, the only state court that has yet dealt with the constitutionality of anonymity in child surrender found a parent’s statutory right to remain anonymous unconstitutional for hindering court procedure. In re Baby Boy Doe, 880 N.E.2d 989 (Ohio Com. Pl. 2007). Ohio juvenile proceedings remain confidential, however.

Confidentiality in adoptions, therefore, can serve a legitimate interest. But it differs from anonymity, which is improper where the potentially opposing interests of parties must be balanced. Adoption proceedings, like the notice bypass proceedings in Akron Center, are sophisticated judicial procedures. As such, they require participants to give identifying information for administrative and other procedural purposes, even if not for public disclosure.

Opinions differ on whether adoption information should be open. But do not be misled by those who portray “anonymous” and “confidential” as synonyms. They want the public to blur the concepts and thereby lose the ability to differentiate between laws that aim to protect and laws that aim to tyrannize.

Erik L. Smith

[Erik L. Smith earned a law degree from the University of Dayton in 2012 after having worked as a certified paralegal for several years. He has published several articles on the internet and in hard copy publications such as Ohio Lawyer, Air Force Law Review, Probate Law Journal of Ohio, Adoption Today, and Midwifery Today.]

2012 Erik L. Smith. Published by Bastard Nation with premission

Follow Bastard Nation

new! Bastard Nation Analysis and Endorsement of the Adoptee Citizenship Act 2015

new!  Bastard Nation Analysis and Endorsement of the Adoptee Citizenship Act 2015

Stop deporting our brothers and sisters!

Bastard Nation Executive Committee and LegCom page

Bastard Nation Executive Committee and LegCom page

Read about Bastard Nation leadership

THE BASTARD BOUTIQUE IS NOW OPEN! STOCK UP ON BASTARD SWAG FOR YOURSELF, YOUR FRIENDS. GIVE THE GIFT OF BASTARDY TO ANYONE, ANY TIME, ANY WHERE.

THE BASTARD BOUTIQUE IS NOW OPEN!  STOCK UP ON BASTARD SWAG FOR YOURSELF, YOUR FRIENDS. GIVE THE GIFT OF BASTARDY TO ANYONE, ANY TIME, ANY WHERE.

Your one-stop shopping for everything Bastard is now live. You can get our latest Bastard Nation swag at the Bastard Boutique. Quantities are limited! -- CLICK THE PIC!

FACEBOOK OFFICIAL BN PAGE

FACEBOOK OFFICIAL BN PAGE

Join us on the Official Bastard Nation Facebook page. The only "adoption" page on Facebook dedicated to discussion and promotion of adoptee autonomy, civil rights, bastard theory, political organizing, and activism. You can also sign up there for our BN mail list which includes all of our Action Alerts. This is not a search and support page. No Woundies need apply! (Page live on July 1, 2015)

FACEBOOK SOCIAL BN PAGE

FACEBOOK SOCIAL BN PAGE

Join the Bastard Nation Public Page, a public service for Bastard Nationals, friends and supporters. General discussion on adoptee rights and related issues.

TWITTER

TWITTER

Join us on Twitter. All the Bastardly news fit to tweet!

PINTEREST

PINTEREST

Join us on Pinterest. Bastard icons, images, members, actions, politics, and fun. And Christopher Walken!

Become a Bastard Nation Legislative Liaison!

Become a Bastard Nation Legislative Liaison!

Bastard Nation needs Legislative Liaisons in every state with laws that seal adoption records. We need eyes and ears in the legislatures, creating relationships and gathering information.

What does a BN Legislative Liaison do? They talk with lawmakers and their staff about adoptee rights and the laws that seal records. They distribute Bastard Nation position papers and FAQs to legislators and staff members. They record their conversations and report to the BN Legislative Committee.

They are organized, informed, friendly, helpful, and engaged.

What do you need to do to be a BN Legislative Liaison?

1. You need to live close to the capitol of your state.
2. You need to be able to appear friendly, even when talking with people who disagree with you or are just disagreeable, period.
3. You need to have a flexible schedule.
4. You need to agree with Bastard Nation’s mission: If you don’t know what that is, go to bastardnation.org, it’s right there on our welcome page.

Those are the prerequisites. If you are interested, click the picture of the capitol rotunda, and fill out the application form. We will be in touch and schedule an online orientation and training.

We look forward to working with you!

Read what real live adoptees have to say about secret adoption and sealed records....A service of Bastard Nation and Emma Pea! Fighting adoptacrats since 1996.

Hit the pic for archives.

PUBLIC SERVICE ANNOUNCEMENT: Meet Sharley!

PUBLIC SERVICE ANNOUNCEMENT:  Meet Sharley!

Bastard Nation Moms Club

Bastard Nation Moms Club

Bastard Nation is gathering the names of moms who are willing to step forward and say that they were never promised confidentiality. If you are willing to participate, please comment this status. Your name (and if you choose, the relinquishment date) will be added to a list used in newspaper ads and to educate legislators.

Bastard Nation Action Alerts (from old BN page)

Bastardly Books by Bastards and Friends

-

  Photobucket

Click Here To Enter

-

 

Recent Comments

bastard-chronicles

bastard-chronicles

Help us celebrate 20 years of bastardy! Bastard Nation is proud to announce the publication of "The Bastard Chronicles: 20 Years of Adoptee Equality Activism in the U.S.and the Birth of a Bastard Nation", Compiled and edited by Marla Paul, "The Bastard Chronicles" is primer for adoptee equality. It features a diverse collection of Bastard theory, and practice, Bastard and Bastard Nation history, legislative and political action, personal stories, art, and literature. It is the public face of Class Bastard written by Bastard Nationals and those we have influenced. Get yours in time for the holidays. Available at Amazon in print and Kindle today. (After the first of the year the print edition will also be available through the Bastard Boutique.

Join Bastard Nation!

Join Bastard Nation!

This summer we are updating our membership/donation page and payment process. If you would like to join or donate, please hit the spemrie. It will take you to our Bastard Boutique page. Follow instructions from there. Be sure to include a quick note with your contact information and anything else you'd like us us know..

My, my it’s American Bastard Pie! (design by Lisa Zatonsky)

My, my it’s American  Bastard Pie! (design by Lisa Zatonsky)

See our state partners:

See our state partners:

Proud Bastard Nation Partner: CalOpen

Proud Bastard Nation Partner: CalOpen

Proud Bastard Nation Partner: Indiana Open Access

Proud Bastard Nation Partner: Indiana Open Access

Proud Bastard Nation Partner: Michigan Open Access

Proud Bastard Nation Partner:  Michigan Open Access

Proud Bastard Nation Partner: Missouri Open

Proud Bastard Nation Partner:  Missouri Open

Proud Bastard Nation Partner: Equal Access Oklahoma

Proud Bastard Nation Partner: Equal Access Oklahoma

Proud Bastard Nation Partner: Open Adoption Records in Quebec

Proud Bastard Nation Partner: Open Adoption Records in Quebec

SAMPLE STATE ORGANIZATION RESOLUTION AGAINST VETOES AND OTHER RESTRICTIONS

SAMPLE STATE ORGANIZATION RESOLUTION AGAINST VETOES AND OTHER RESTRICTIONS

Any political organization seeking to enact true open records legislation should be very clear with both their constituents and the legislators they work with about what the essential provisions of the proposed bill are. Any modification or deletion of the essential provisions of a bill should be immediate cause to have the bill killed.

Any political organization seeking the assistance of Bastard Nation to pass open records legislation must hold unconditional access by adult adoptees to the original record of their birth as an essential provision that cannot be modified or deleted. Read our Mission Statement.

Bastard Nation will not assist any political organization to pass open records legislation unless their governing board or other leadership

passes a written resolution such as the following that commits the board to a strategy of no compromise on key provisions
informs its constituents of this commitment and this strategy
informs the sponsoring legislators of this commitment and this strategy.

WHEREAS we recognize that disclosure and contact vetoes, redactions, mandatory intermediaries and registry provisions are an affront to the dignity of adopted persons everywhere and a violation of their right to due process and equal treatment under the law,

WHEREAS there has been a demonstrable negative effect on the ability to pass unconditional open records in states that have passed veto legislation and/or any provisions that are less than unconditional access on demand by the adult adoptee,

WHEREAS our primary goal is to restore the right of adult adoptees everywhere to be treated as full citizens under the law,

WE HEREBY DECLARE that under no circumstances will we accept the addition of veto, redaction, intermediary, or registry provisions, or any conditional provisions to our legislation that would be less than unconditional access for adult adoptees to the original record of their birth. All legislative sponsors and members of this organization will be informed of our policy on this matter to ensure that the bill is pulled promptly in the event of such revisions.