Why Contact Vetos are not an Acceptable Compromise

Why Contact Vetoes Are Not An Acceptable Compromise
by Shea Grimm

(This article first appeared in the Spring 1997 issue of the Bastard Quarterly.)

The entire adoption reform world is turned towards Tennessee, awaiting a decision from the Sixth Circuit Court of Appeals on whether records in that state will be open or will be slammed shut. The consequences of this decision will reverberate throughout the nation. What has been lost in all the hubbub is the fact that the Tennessee open records law, currently being challenged in a federal court of law, contains contact vetoes, and if the law survives the court battles, Tennessee will be the first state in the U.S to implement them.

Adoption reformers are no strangers to disclosure vetoes, those ubiquitous provisions that allow birthparents and adoptees to veto the exchange of identifying information to the other. Disclosure vetoes were a popular compromise to open records in the 1980’s, as were intermediary systems. Similarly, contact vetoes are seen by many as another step along the slow and winding road to recognition of the adoptee’s right to know.

Contact vetoes function essentially as restraining orders. In the Tennessee case, a birthparent can file a contact veto, and if an adoptee requests his records and indicates plans to contact, they will be informed if there is a veto on file. These vetoes prohibit the adoptee, or anyone acting on their behalf, not only from contacting the person who has filed the veto, but that person’s immediate family as well; grandparents, siblings, aunts, uncles and cousins of the adoptee. There are criminal penalties for violating the contact veto, just as there are with restraining orders. Unlike restraining orders, however, contact vetoes are orders issued without cause, and without remedy. Adoptees have no opportunity to take advantage of due process and face their accuser. These vetoes make adoptees a suspect class, slapping them with orders of protection based solely on their adopted status, and perpetuating the nescient notion that contact between adoptees and their birthfamilies is fraught with danger.

When the news first broke that the Tennessee open records bill contained contact vetoes, and for weeks afterwards, I bombarded alt.adoption and other online fora with treatises on their unconstitutionality. I argued with lawyers, laypeople, adoption reformers, closed records advocates, and with members of my own organization. I was frustrated, appalled, and zealous. Everywhere I turned, whether it was to the New York open records effort, or to Idaho, where a newly formed legislative committee touted vetoes with an alarming enthusiasm, it became apparent that contact vetoes were the next ingenious compromise to be seized upon by an adoption reform movement which looked increasingly as if it doubted its own message. The right to know had won, only to be supplanted by this trampling of the adoptee’s right to due process and equal protection under the law.

In the case of New York state, recent proposed records legislation authored by APAC offers no definition as to what ‘contact’ consists of, nor elaboration on who is covered in the contact veto, nor any penalties for violating the veto. Adoptees rightly wonder if they could be arrested for sending flowers on their birthmother’s birthday, or an occasional holiday card. This legislative vagueness might speak to an intentional ploy to discourage any prosecutions, but it also speaks to the willingness of adoption reformers to play a risky game with the constitutional rights of adoptees.

Contact vetoes are meant to address legislators’ and others’ concerns about the privacy of birthparents. The ‘right to privacy’ is a slippery legal concept first articulated by our Supreme Court in Griswold v. Connecticut, a case that dealt with a state’s ban on contraceptives. The right to privacy cannot be found explicitly in our Constitution, but the Court has interpreted this implicit right as one of individuals to be free from governmental intrusion that interferes with their individual privacy. The right to privacy has never been interpreted as a right of individuals to be anonymous from other individuals. In a rather ironic turn, the Tennessee bill, which will in all likelihood impose contact vetoes on U.S. adoptees for the first time ever, was upheld in the Sixth Circuit Court by Judge Nixon, who opined, in part, that

“..the disclosure of private information to adult adoptees under the Act is not sufficiently analogous to fundamental familial and reproductive privacy rights. Further, the Supreme Court and the Sixth Circuit do not recognize a right to the nondisclosure of personal information.”

Adoption reformers justify the vetoes the same way that they justified intermediary systems and disclosure vetoes in previous years. “Legislators won’t sponsor the bill without these compromises.” “If your birthparent doesn’t want contact, why would you want to be rejected anyway?” These individuals fail to understand that one cannot bargain away one’s constitutional rights without serious detriment to the dignity of the adopted population as a whole

In 1979, a woman by the name of Margaret McDonald Lawrence stood before a group assembled at the National Conference of the American Adoption Congress, and eloquently and passionately declared that intermediary systems were far too high a price to pay in terms of pride, dignity, and self-respect. I submit to you that contact vetoes come with no less outrageous and unacceptable a pricetag. Lawrence also noted that after the Supreme Court issued an important opinion dealing with paternity issues, a prominent attorney assured adoptive parents that there was no need to worry. Birthfather notification laws could easily be bypassed by ingenious routing of information. Letters could be sent to old addresses, and obscure papers used to print notifications. Lawrence accurately suggested that with no controls or accountability, the intermediary machine would conduct its ‘searches’ in a similar manner.

Laying aside the issue of our constitutional right to due process and equal protection under the law, how are we, as adopted individuals, to expect any degree of honesty and integrity from the contact veto system? Those of us who have been told tales of convenient floods, car crashes, and fires that destroyed our records, or killed off our birthparents, have little faith that those in possession of vital information will ‘do the right thing’. We’ve been regaled with tales of how our birthmothers never contacted our agencies, only to discover later that precious gifts and letters were disposed of or hidden by agency personnel. How are we supposed to once again put our trust in a governmental system designed to further infantilize adoptees? Why should we?

The hopes of many adoption reformers that intermediary systems, registries, disclosure vetoes and such seemingly temporary solutions would pave the way for open records, have come to naught. In fact, there is a great deal of evidence that the passage of these compromise systems actually inhibits open records progress. Legislators are not anxious to change these systems once they are put in place and paid for. Contact vetoes are an improvement in the sense that the information adoptees seek, in the form of their original birth certificates, is implicitly acknowledged as belonging to them. However, they are no less a constitutional violation than sealed records themselves. Contact vetoes are not the solution. We can and must demand better.

Shea Grimm is a lawyer and reunited adoptee of mixed Native ancestry currently living in Hawai’i. She is a co-founder of Bastard Nation.