Thursday, July 17, 2014

Time to end the myth of first mother's right to privacy

Jane
"Birth mothers right to privacy" -- these words get tossed around like snow in January. Advocates for unsealing birth records write countless pages of logic trying to refute this assumed right.  No matter the data, that only a minuscule of mothers have signed "no contact" preferences or demands, opponents beg for the right of the little lady in the closet. They try to bolster their bogus claim with U. S. Supreme Court cases upholding the right to practice birth control (Griswold v. Connecticut) and have an abortion (Roe v. Wade).

The truth is that the little lady has no right to keep her child's identity a secret because she has no right to have her child adopted. It's adoption, not consent, which triggers sealing of the birth certificate. This is the holding of the courts in Tennessee and Oregon which have upheld laws allowing adoptees access to their original birth certificates. Here's the opinion in the Oregon case, Jane Does 1 -7 v. the State of Oregon by Chief Judge Paul De Muniz with citations omitted.*


CONSTITUTIONAL RIGHT TO BIRTH CONTROL AND ABORTION
"Plaintiffs [closeted birth mothers] also argue that application of Measure 58 to them would violate fundamental constitutional rights of privacy and confidentiality under the federal constitution. In Griswold v. Connecticut,  (1965), the Court recognized a "penumbral" privacy right, not specifically attached to any single constitutional provision, "surrounding the marriage relationship." In that case, the Court struck down a state law that criminalized the use of contraceptive devices or medicines by married couples. Such a law, the Court stated, has a "maximum destructive impact" upon the marriage relationship that lies "within the zone of privacy created by several fundamental constitutional guarantees." In Eisenstadt v. Baird, (1972), the Court extended that protection to unmarried people as well, under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, on the ground that no rational basis existed for treating married and unmarried people differently in regard to their ability to use contraceptives. The Court stated:
"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (emphasis in original).
Eventually, in Roe v. Wade,  (1973), the Court extended this penumbral privacy right affecting decisions on whether to bear children to encompass a woman's right to choose to abort a fetus in the earlier stages of pregnancy.

Plaintiffs assert that allowing their adopted children access to the birth certificates that would reveal the names of their birth mothers violates the constitutional privacy rights of birth mothers because it constitutes an unwanted governmental intrusion into their decisions concerning whether to bear or beget children.  Plaintiffs assert that the decision to give birth to a child and surrender it for adoption should be protected to the same extent as a decision to have an abortion or to give birth to a child and raise the child.

NO CONSTITUTIONAL RIGHT TO HAVE CHILD ADOPTED
We are sympathetic to plaintiffs' arguments because it is clear that the decision to place a child for adoption is an intensely personal decision. However, we are unable to conclude that a law that permits adult adoptees access to vital records concerning their births has the same sort of constitutional infirmities as the laws that criminalized contraception and abortion that were struck down in GriswoldEisenstadt, and Roe. A decision to prevent pregnancy, or to terminate pregnancy in an early stage, is a decision that may be made unilaterally by individuals seeking to prevent conception or by a woman who wishes to terminate a pregnancy. A decision to relinquish a child for adoption, however, is not a decision that may be made unilaterally by a birth mother or by any other party. It requires, at a minimum, a willing birth mother, a willing adoptive parent, and the active oversight and approval of the state. Given that reality, it cannot be said that a birth mother has a fundamental right to give birth to a child and then have someone else assume legal responsibility for that child. Although adoption is an option that generally is available to women faced with the dilemma of an unwanted pregnancy, we conclude that it is not a fundamental right. Because a birth mother has no fundamental right 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.

GIVING BIRTH IS NOT A PRIVATE ACT
Adoption necessarily involves a child that already has been born, and a birth is, and historically has been, essentially a public event. In Doe v. Sundquist, [the Tennessee case] the Sixth Circuit Court of Appeals, in rejecting a similar challenge to a Tennessee law that permits adoptees access to birth records, noted:
"A birth is simultaneously an intimate occasion and a public event--the government has long kept records of when, where and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth. The Tennessee legislature has resolved a conflict between that interest and the competing interest of some parents in concealing the circumstances of a birth."
Neither a birth nor an adoption may be carried out in the absolute cloak of secrecy that may surround a contraception or the early termination of a pregnancy. A birth is an event that requires the generation of an accurate vital record that preserves certain data, including the name of the birth mother. That the state has a legitimate interest in preserving such data is not disputed here. We recognize that a birth mother may well have a legitimate interest in keeping secret the circumstances of a birth that is followed by an adoption and also that an adoptee may have a legitimate interest in discovering the identity of his or her birth mother. Legitimate interests, however, do not necessarily equate with fundamental rights. The state may make policy choices to accommodate such competing interests, just as the state has done with the passage of Measure 58. We conclude that 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." (emphasis added)--jane

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*164 Or App 543, 933 P 2d 822 (!999)



15 comments :

  1. While I agree - totally - I have to ask then, what of us that would rather not have any contact with adopted adults who are abusive? I for one would like to skip the rest of the adoptoland insanity that seems to be part of my life. The constant emotional turmoil is destructive to me, my family, and my extended family.

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    1. Lori, as you with any person you can insist on boundaries. If the person keeps harassing you, you can obtain a court order to keep the person away.

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    2. Lori,
      You cannot base a first mother's so-called right to privacy or anonymity on how her relinquished child may or may not treat her if they ever reunite. You are letting your emotions from your own personal situation unfairly color your understanding of this issue. Saying that because your daughter has done emotionally hurtful things to you, first parents should be allowed to keep their identity secret is cruel in my opinion. Just because some adoptees may have been very hurt by adoption and are unable or unwilling to have a good relationship with their first parents does not mean that all adoptees should be denied the right to know who their bio-parents are and to know their ancestry.

      I feel in this comment and other comments of yours that you are basically saying that adoptees have few, if any, rights to their blood heritage. As an adopted person that really angers me. You are not adopted. You know where you come from. I had no say in being adopted and I have the same right to know my natural heritage as you do to yours. When you can show me the papers I signed where I agreed to never know my own parents, extended family, heritage, religion and medical history then MAYBE you'd have a leg to stand on.

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  2. Jane, you know as well as I do that there is "harassment" and "legal harassment" - the kind I am talking about is not the kind any judge would think was important enough or dangerous enough to obtain a court order for. The kind I am talking about is the constant "pushme/pullyou" that seems to be destructive and horrible not just to the mother, but the family. My daughter has come into my life and out of it more times than I bother with anymore. If it was just me she was dumping on, I would simply ignore her when I couldn't handle her emotional battery anymore, but it isn't. She uses my entire family! She shuts them off and cuts them out, regardless of age or connection with her, every time she has a snit over something I have done - real or imagined. This includes kids that are or were pre-teens and who truly could not understand how their cousin could just decide they were not worthy to be her friend/relative.

    This is the kind of thing that no court cares about, but I do. I feel that mother's should have a right to shut the door without issues, vilification from the community, etc., just as adoptees do. After all, it is a two way street.

    Sigh.... I think that the information should be available, but at the same time, contact is optional for both parties, not just one. And that is not realistic....

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  3. Hi Lori: What Jane says is correct....you can insist on boundaries. If I were to finally contact any of my first family and they wanted me to leave them alone, I would do so. Some adoptees are a bit more problematic, but if it gets out of hand you can get the court order.

    My black market friend, having found her father's family, is beside herself. I can understand her feelings. She has emailed first cousins, second cousins, received pictures of family members and of her first father, and she is on cloud nine. However, her two half-sisters, who would be her closest relatives, want nothing to do with her, and are being very nasty about it. She has written letters and sent emails, and they are very adamant about shutting her out completely. I advised her to let it go. Maybe they will come around, maybe not. But , as happy as my friend is, she has no right to keep bothering these people. Thankfully, she listened, because the whole thing was going to get ugly.

    I wish the two sisters would have treated my friend with more compassion. But, two wrongs don't make a right....and my friend has no right to harass them, either.

    I sincerely wish adult adoptees, first families, and adoptive parents would act like the adults that we are, and approach one another with respect. Can't we talk about these events.....and co-exist without the lies, secrecy, and insecurity? Adoption happened, and it caused a lot of problems for a lot of people. Why can't we just admit it, forget the secrets, and move on?

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  4. Lori: While I think your daughter's push/pull and what she has said to you is extreme, I experienced some of the same kind of emotional turmoil with my daughter. When I felt my (reunited and found) granddaughter starting the same thing, I knew I would not go through that punishment again. I feel for all reunited birth first parents who have the same experience. Reunion is the beginning of a different part of our story.

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  5. We have got to get the semantics and definitions straightened out here.
    ALL mothers were promised "confidentiality" - that is, that the birth and hospital admission/discharge would not be published in the newspaper or other lists made available to the public, and that her name would not be seen in court dockets posted for or available to the public.
    ALL mothers are entitled to "privacy," the same as every other citizen; that is, the right to reject any contact we do not want and to seek judicial recourse if anyone violates our privacy.
    NO mother is entitled to, nor could they be legally be promised, "anonymity" or "secrecy" from any other person or government agency who appears on a legal document, in this case, the birth certificate. That document equally "belongs to" (or should) each of the parties named therein, especially the person whose birth is recorded, though, again, it is "confidential" to those parties only and not the general public.
    Hope this clears up some of the confusion with words and meanings in adoptee rights.

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  6. First:

    Robin, I have always supported the right of an adopted person to the information that they need medically and the history - I would have to be a total moron not to. I have, and will always, provide up to date and clear information for my daughter - if she actually wanted it....

    Second:

    I never said I was, or any mother was entitled to the "anonymity" or "secrecy" that is forced on us.

    Third:

    While I totally respect that a lot of adoptees have had a hard life... guess what, they aren't alone and it does not entitle them to be abusive in behaviors.

    No offense to anyone, but it would certainly be easier and nicer if people would read the entire post, comment, whatever, and try not to focus only on the things that irritate them. If someone doesn't like what I have to say, so be it. But if you are misconstruing what I have to say to justify your own rage at one thing out of several paragraphs, please, leave me out of it. Thank you.

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    1. The point that Robin was making, is that you would not have known HOW your daughter would behave towards you after reunion. As an adult, you have the right to file a restraining order to anyone harrassing you and your minor children. Most of us involved in adoptee rights are aware that there will always be the outlyer situations, like yours. That is often why we are proponents of Contact Preference forms. However, the familial relationship doesn't end at the mother/adoptee relationship. No mother should be making permanent decisions regarding which other adults their adult children can be in contact with. And, when a parent files a VETO- that's what it does. It not only stops the adult adoptee from finding out their original family name, but in many cases, completely stops the adult children who were raised by the firstmom from knowing or finding out about the adoptee.Often they hear a hint that their mother had a child in her youth but don't know where, when or with whom. Maybe the answer is a Nationally promoted genetic databank so that those who want to find and be matched won't have to go thru the state to unlock their OBC. I don't know what the answer is, but I know that state run vetos aren't it.

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    2. State vetoes are definitely NOT it.

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  7. Priscilla: You said that "document equally "belongs to" (or should) each of the parties named therein" - which says to me that I am entitled to my daughter's OBC - I can't even get it! So it is not locked just to adopted persons, but to anyone at all! And yes, I am entitled, according to the Freedom of Information Act because the document records my giving birth to a child - my daughter.

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    1. Yes, Lori, and it is a legal document which you signed, and, technically we have the right to access every legal document that we signed. I got a copy of my daughter's OBC from the agency in Arizona - not from the state vital records, as I am sure it is sealed away from me there, too, as well as from my daughter. But other mothers in other states have been successful. We do have a long way to go to restore fairness, justice and equality across the country.

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  8. And the sealed document records an adoptee being born. Date, time, place, weight. It cannot be sealed from the adoptee while giving us a false BC that is supposed to appease us. Many first mothers have their BC, and adoptees should as well. If the mother's name is on it, that's as it should be. And as adults we should all be able to proceed from there. No one has the right to seal away the document of my birth. No one.

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  9. My sister and I are both first mothers. The difference being that I had a "choice" to place my daughter at birth and my sister's children were taken forcibly because of abuse. Unfortunately, there was no option to place her children within the family. 7 or 8 years after her children were adopted (thankfully all by the same family), we found out via a family friend, that the oldest boy was turning violent, both physically and verbally. His favorite thing to say was that when he turned 18 and found out who his mother was, he was going to beat the crap out of her and then kill her. This is the only case I have against adoptees having full access to their birth records. (My sister may be a rotten person, but I certainly don't want her dead.) I think that if there are cases like this, where there are very real threats to a first parent, access to records needs to be partially restricted.

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  10. Anonymous,

    I'm sorry you feel that way, laws are made and changed in the best interests of the majority, not the minority. So you have a case of a verifiable threat, with witnesses, that you could use to go to court to argue good cause that he not be allowed to know who his mother is and a no contact order...

    Instead though, you seem to think it would be far easier if all adoptees, wherever and whenever they were born should instead be denied. It'd be easier for you. We are talking hundreds of thousands of adoptees denied equal rights to legally access their original birth certificate, instead of you taking charge by pre-emptively going to court and obtaining relief.

    If you were really that concerned, why haven't you already obtained a court ordered injunction against him making contact? You must have seen and read stories of adoptees reuniting with their families of birth with having access to their OBC?

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