The following published opinions are summarized below. To read the full opinion, click the link to the citation. To date, federal courts have dismissed constitutional equal protection and other arguments, and declined to rule on their merits based on abstention. Additional notes provide information about changes in state statutes after the date of the ruling.
STATE SUPREME AND APPEALS COURT RULINGS FOLLOWING RETROSPECTIVE CHANGES TO STATE STATUTES:
TN: Retrospective records access law did not impair any contractual or vested birth parent right to privacy.
Note: In 2021, the TN legislature unanimously passed HB 62/SB 723, which repealed the state's Contact Veto Registry.
OR: 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, 106 F3d 702, 705 (6th Cir), cert den 522 US 810 (1997), 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.
Note: In 2013, SB 623 expanded the scope of records available to include the court file upon request, and the home study for an adult adoptee who petitions the court with a presumption of access.
INDIVIDUAL CASES BASED ON STATE STATUTES:
In re J.N.H. 209 P. 3d 1221 (Colo. App 2009) granted access to records to Colorado adoptee Jeff Hannasch, whose birth mother's name appeared on his adoption decree, and for adoptions finalized between 1951 and 1967.
J.N.H. (petitioner) appeals from the order requiring him to seek adoption records, in order to learn the name of his birth father, through a confidential intermediary under section 19-5-305(2)(a), C.R.S. 2008. Because, contrary to the trial court's conclusion, we discern that the statute permits petitioner to access the adoption records, we reverse and remand for further proceedings.
The order here is final because it ended the trial court proceeding.
(The court reviewed the history of relevant Colorado laws enacted in various years.)
The language in the statute is (was) ambiguous....Accordingly, we resolve the ambiguity in the statute in favor of the petitioner. We conclude that the General Assembly must have correlated the names of the parties to an adoption with the records of the adoption and, therefore, for adoptions finalized prior to July 1, 1967 but after July 1, 1951, an adoptee may have access to the names of his or her birth parents and to all court records and paper regarding the adoption.
The order is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
Note: The Colorado General Assembly subsequently unanimously repealed the existing "sandwich" statute and restored access by an eligible party to original birth certificates and certain other adoption and relinquishment records as defined in statute, upon written request and proof of identification for all time periods in SB 14-051.
IN RE G.D.L., Appellant.
District of Columbia Court of Appeals.
Argued September 16, 2019.
Decided January 2, 2020.
Case remanded for further proceedings (G.D.L., who already knew the names of both of his birth parents, ultimately received an unredacted copy of his original birth certificate.)
In sum, we hold that the term "child" in § 16-311 extends not only to minors but also to adoptees who are adults at the time of the request for disclosure. We interpret In re D.E.D. to stand for the narrower proposition that — at least in the absence of extraordinary circumstances — the trial court should not deny a request for disclosure where the request is made by an adult adoptee and all other affected persons have consented. 672 A.2d at 584.
[Birth parents] have no absolute right of privacy in connection with a later motion to disclose. More generally, as previously noted, the adoption statutes generally give greater weight to the interests of the adoptee than to the interests of biological parents.
G.D.L. argues that he has an absolute right (based on a "direct and tangible interest") to receive an unredacted copy of the original birth certificate. We disagree. (The Court pointed out that the fact that G.D.L., a lawyer who represented himself in the matter, relied on a subsequently repealed statute was essentially moot, since the section of law he cited did not apply to his argument. In subsequent comments after receiving an unredacted copy of his original birth certificate, G.D.L. stated that he intentionally did not make a constitutional equal protection argument on behalf of all adoptees.)
IN RE STATE DHRS VS. MULLARKEY
District Court of Appeal of Florida, First District, 10 March 1977
While there may be compelling reasons to support the Department's position, the state legislature has explicitly required the Department to furnish the original birth certificate and all papers pertaining thereto "at the instance and request of the person whose birth is the subject of said certificate of birth" Sec. 382.22, F.S. 1975.
Note: In 1977, the Florida legislature amended the statute to require consent of birth and adoptive parents in order to release copies of records, though 1939 language allowing adult adoptees access upon request and proof of identification was not removed until 1987. In 2020, the requirement for adoptive parent consent for adult adoptees was removed by HB 89.
UNSUCCESSFUL CONSTITUTIONAL ARGUMENTS:
Mills v. Atlantic City
• No fundamental right of adoptees has been abridged
• Adoptees are not a “suspect class”
• State has a compelling interest in regulating access to records
• Court sets procedural criteria
• Burden of proof should shift to the state to prove that good cause is NOT present
• Neither party (adoptee nor birth parent) has “an absolute right.”
• Constitutional principles of equal protection do not require that all persons be treated identically. State v. Krol, 68 N.J. 236 (1975). In Torres v. Wagner, 121 N.J. Super. 457 (App. Div. 1972), the court noted that the Legislature had wide discretion in the creation and recognition of classes for difference treatment... If there is a reasonable basis for the recognition of separate classes and the disparate treatment of the classes has a rational relationship to the object sought to be achieved by the Legislature, the equal protection clause is not violated. [at 459]
Note: New Jersey law changed in 2014, with P.L. 2014, C. 9 providing adult adoptees direct access to their original birth certificates, unless a birth parent objects in writing. To date, a very small number of objections have been filed.
Yesterday’s Children v. Kennedy
Argued Nov. 1, 1977. Decided Dec. 29, 1977. *Petition for Rehearing Denied Jan. 16, 1978
In August 1977, a three-judge district court granted defendants' motions to dismiss the action without prejudice on the grounds of abstention.6 The opinion reasoned that the Illinois courts could "apply the (two) statutes in such a way as to withstand constitutional attack" (mem.op. 6). To support abstention, the opinion relied principally on Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S. Ct. 1898, 52 L. Ed. 2d 513; Bellotti v. Baird, 428 U.S. 132, 96 S. Ct. 2857, 49 L. Ed. 2d 844; and Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376.7 We have jurisdiction of this appeal from that decision because the three-judge district court did not reach the merits of plaintiffs' constitutional arguments (MTM, Inc. v. Baxley, 420 U.S. 799, 95 S. Ct. 1278, 43 L. Ed. 2d 636), nor do we. Our affirmation is based solely on abstention.
(Note: in 2010, Illinois Public Act 96-0895 repealed portions of the statute and allowed adult adoptees over 21 years old to obtain their OBC, subject to a birthparent's written objection. A very small number of objections have been filed.)
ALMA Society v. Mellon U.S. District Court for the Southern District of New York - 459 F. Supp. 912 (S.D.N.Y. 1978) November 2, 1978
No constitutional or personal right is unconditional and absolute to the exclusion of the rights of all other individuals.
The statutes before the Court do not totally deny plaintiffs access to the information they seek. They only require that they, as members of a class in which there is an overwhelming state interest, must demonstrate good cause in order to protect the countervailing privacy rights of the natural parents. Such a limitation based upon a valid state policy of protecting the rights of others is not an unconstitutional exercise of state power.
In the last analysis, as the Supreme Court has expressly pointed out, "the protection of a person's general right to privacy his right to be let alone by other people is, like the protection of his property and of his very life, left largely to the law of the individual states." Katz v. United States, 389 U.S. 347, 350-51, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967) (footnotes omitted).
It is the opinion of this Court that plaintiffs' rights to privacy and to receive important information are not constitutionally abridged by the New York statutes but rather are
permissibly limited in accordance with a valid state interest to balance conflicting rights of privacy and to protect the integrity of the adoption process, which is likely to suffer if the assurances of secrecy are not present. Constitutional principles of equal protection do not require that all persons be treated identically.
The state has more than a rational basis; it has a compelling interest in regulating the access sought here.
These views will be recognized almost in haec verba as the views also expressed by the New Jersey Court in Mills v. Atlantic City Department of Vital Statistics, 148 N.J.Super. 302, 372 A.2d 646 (Ch.Div.1977).
The Court holds that the regulations challenged here are reasonable and appropriate; the Court accordingly concludes that even if the plaintiffs had made out a constitutional right of access to their records in any circumstances their failure to accommodate the state's interests seems to the Court to require that their complaint be dismissed and accordingly the Court concludes that judgment shall be entered herein dismissing the complaint.
Note: The New York State Legislature overwhelmingly repealed the state's longstanding statute and restored access to original birth certificates upon written request and proof of identification via S3419 in 2019.