August 7, 2009

Doe v. Sundquist

Scales in hand
© Photographer: Olgapshenichnaya | Agency:
Federal Appellate
Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997) (open records)

The constitutional right to privacy did not include a right to remain anonymous in adoption surrenders.
A Tennessee bill made adoption records available to adoptees 21 years of age or older. Information could be released only to the adult adoptee, parents, siblings, lineal descendants, or lineal ancestors, of the adoptee, and only with the adoptee's written consent.

A birth mother, an adoptive couple, and a child-placing agency moved to block the statute's enforcement, arguing that it violated their constitutional right to familial privacy and reproductive privacy. The district court denied their motion.

On appeal, the sixth circuit first noted that births were both intimate occasions and public events, records of which the government had long kept, for many reasons. The court then rejected the familial privacy argument because the statute would still leave people in Tennessee free to marry, raise children, adopt children, and surrender children for adoption. The court also rejected the reproductive privacy argument, reasoning that, because statute did not limit adoptions or unduly burden the adoption process.

Six U.S. states have passed legislation restoring the unconditional right of adult adoptees in their states to obtain their original birth certificate just like other citizens. But in most states these records and the adoptee's orginal birth certificate are sealed from them, even in adulthood.
Vital Records: The Issue of Open Records for Adult Adoptees ~ Part I ~ Part II ~ Part III
I am writing as the adoptive parent of 12 children, six of them adopted with special needs, in support of HB 2810/SB 6496, a measure giving adult adoptees access to their original birth certificates. Also an author and professional in the adoption field, I commend Washington state legislators for considering the rights of adopted Americans. In this country, our tradition has been to support the best interests of the child in all adoption proceedings. We owe adoptees no less consideration to their interests when they become adults.

Opponents to birth certificate access argue that the "promise of privacy" given to birth parents will be violated if adult adoptees receive accurate records of their birth. The truth is that birth parents have not been promised secrecy, have not wanted secrecy, and have no constitutional right to keep their identities "private" from their children--findings upheld in the 6th Circuit Court of Appeals decisions in Doe vs. Sundquist, a court case revolving around this very issue.

In actual practice, the identities of birth parents are routinely available to adoptive parents. Adoption petitions, hospital records we are given, social work and nursing records, and other documents passed from state and private agencies to foster parents and on to we adoptive parents often identify birth parents by name. Often we also find our children's birth parents' social security numbers and addresses in our children's records. To defend against wrongful adoption lawsuits, adoption agencies and facilitators must disclose so much to adoptive parents that any so-called "promise" of withholding identifying information about birth parents can only be a myth.

Adoption professionals and adoption groups, in the majority, support adoptee access to the original birth certificate. In my new book, In Whose Best Interests? Ethics in American Adoption (in press, Greenwood), I reported results of a 1994 study I conducted of the country's 50 state licensors of adoption agencies and 23 professional, adoption-relate or child welfare associations. My findings showed that the majority (62%) said that adult adoptees should be given access to their original birth certificates, supporting the idea that the professinal ethics of confidentiality and client self-determination can be observed without conflict in adoption practice.

My findings were similar to those of others who have researched professional attitudes toward open records, showing that the value of supporting client self-determination (in the case of the adult adoptee wanting his original birth certificate) and that of observing confidentiality (of the birth parents) need not conflict or be resolved through the American practice of sealing of adoption records. Most other nations operationalize the confidentiality of adoption records in much the same way that medical records are safeguarded in the United States. Such records can be released to and by those to whom they belong, thus supporting the ethic of confidentiality while also respecting that of client self-determination.

Opponents to adult adoptee access to the original birth certificate also say that such access promotes abortion. Kansas, my neighbor to the north, has always given adult adoptees access to their birth certificates. Abortion rates in Kansas have been lower than in neighboring states having closed records. The United Kingdom (including Scotland and Wales) and New South Wales, Australia experienced declines in abortion rates after they gave adult adoptees access to their birth certificates. Statistics from the governments of these countries were accepted as testimony in Doe v. Sundquist before the 6th Circuit Court of Appeals and resulted in Tennessee's open records law being upheld. Thus, those who support the unborn child's right to live ought also to support the adult adoptee's right to have his or her own honest and unadulterated birth certificate.

The majority of adoptive parents support adult adoptee access to the original birth certificate:

In 1992, Adoptive Families of America surveyed their predominantly adoptive-parent membership about their opinions concerning access to the birth certificate. The majority supported adult adoptee access to the original birth certificate.
In 1958, 1968, and 1978 Paul Sachdev researched adoptive parent, adoptee, and birth parent attitudes toward open adoption records in Unlocking the Adoption Files (1989). Sachdev, whose work is highly respected worldwide, found that 69.7% of all adoptive parents surveyed, as compared with 88.5% of birth mothers and 81.8% of adoptees, said that adult adoptees should be able to receive identifying information.
The New York State Citizens' Coalition for Children (NYSCCC), in cooperation with Cornell University professor Rosemary Avery, Ph.D., developed a survey of adoptive parents in New York state about adult adoptee access to the original birth certificate. Again, the majority of adoptive parents supported access.
Having worked recently with Washington state adoptive parents adopting waiting children in your state and others, I am keenly interested in contributing to every effort that supports adoptive families. I believe that HB 2810/SB 6496 is a bill that ultimately supports adoptive families because it gives adoptees rights that the non-adopted have always had, removing a stigmatizing barrier that has historically only been applied to American adoptees. We adoptive parents and our children want to be regarded and treated like everybody else: like real families, for that is what we are.

HB 2810/SB 6496 is a measure that acts in the best interests of adopted children and adopted adults--the very people we say we want to serve. I hope you will join me in supporting adoptee access to their own records.

L. Anne Babb, Ph.D.
North American Council on Adoptable Children
National Adoption Assistance, Training,
Resource, and Information Network

Burr v. Stark Cty. Bd. of Commrs., 491 N.E.2d 1101 (Ohio 1986) (wrongful adoption)
The adoptive parents could sue the adoption agency for wrongful adoption where they were fraudulently misled to their detriment by the agency's misrepresentations about the child's background and condition.

In Burr, the adoption caseworker told the prospective adoptive parents that the infant they sought to adopt had been borne by an eighteen-year-old unwed mother and had no health problems. After the adoption, however, the child suffered mental and physical problems, including being classified as mentally retarded and diagnosed as having Huntington's Disease.

During treatment, the adoptive parents got a court order opening the sealed records. The records revealed that the natural mother had been a thirty-one-year old mental patient with a "mild mental deficiency, idiopathic, with psychotic reactions." The father too was thought to have been a mental patient. The records also showed that the child suffered a fever at birth, and that the agency knew the child was developing slowly.

The adoptive parents sued for medical expenses, claiming they would not have adopted the child had they been told the truth. The jury awarded the adoptive parents $125,000. The agency appealed, arguing that any costs incurred in caring for the child were incidental expenses that all parents were obligated to incur for their children.

The Ohio Supreme Court disagreed, holding that the adoptive parents had proven fraud, which was: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance.

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