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