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 Griswold, Eisenstadt, 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)