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May the state open previously closed adoption records? - Jane Does 1-7 v. State, No. CA A107235 (Or.App. 12/29/1999)

One of the most difficult questions in adoption is whether the adopted child's right to about his/her patents trumps the privacy right of the parent who originally gave up the child for adoption. Some states have a registry system that allows the child and the parent seeking to contact a child to register with the state. If there is a match, the state puts in touch. Oregon voters, through a voter initiative and referendum, opened all original birth certificates to adopted adults:

"Upon request of a written application to the state registrar, any adopted person 21 years of age or older born in the state of Oregon shall be issued a certified copy of his/her unaltered, original and unamended certificate of birth in the custody of the state registrar, with procedures, filing fees, and waiting periods identical to those imposed upon non-adopted citizens of the State of Oregon pursuant to ORS 432.120 and 432.146. Contains no exceptions."

This is an appeal of action brought on behalf of mothers who had given children up for adoption, plus several interest groups as intervenors. The initial action sought an injunction to stop the opening of the records and to have Measure 58 declared an unconstitutional violate of the plaintiff's right of privacy and an improper abrogation of contracts with the state promising that the mother's identity would not be disclosed. Plaintiff's limited their challenge to the constitutionally of the application of Measure 58 to themselves and others who had been given assurances of privacy because at least one intervenor was a birth mother who claimed that she had not been given any assurances of privacy. The court found that this limited challenge could not support plaintiffs' requested stay of the enforcement of the Measure against all persons, but found that plaintiffs might still have a limited remedy against the application of the statute to themselves and others similarly situated.

The core of plaintiffs' claims is that Oregon Constitution bans any laws that impair the obligation of contracts. (Such prohibition is limited, of course, to any contracts that do not violate public policy.) They assert that the state, through social workers and through private parties acting as agents of the state, made confidentiality a term of the contract for adoption. The state rebutted this by claiming that it had never assured confidentiality by statute and that it was thus not bound by any of these representations. The court began its review by noting that adoption was unknown at common and thus is a statutory creature subject only the provisions of the enabling statutes and applicable constitutional limitations. The original Oregon statute establishing adoption did not provide any privacy protections and made the identity of the birth mother (and father, if known) a public record. Birth records were not sealed by statute until 1957, and were still available by court order. Though subsequent laws continued to modify the availability of the original birth certificate, they always remained available under court order and in other situations as determined by the state registrar.

The strongest support for plaintiffs' claims is in the statute that authorized the creation of an adoption registry where the preamble states that Oregon recognizes the importance of the parental right of privacy in adoptions. Recognizing that contracts for adoption are not traditional contracts in that the parties are not free to determine their terms, the court analyzed the law and cases to determine if the state "unambiguously" intended to enter into a contract. The key factor is whether the statute contains commitment to not repeal or change it terms that it intends to be binding on subsequent legislatures. Both of the precedent cases relied on by plaintiffs dealt with statutorily created trust funds - one for worker's compensation payments and the other for pensions. In both cases the court found that the statute creating the funds explicitly limited future legislatures' access to the funds. In both cases the state was acting in the role of a traditional insurer and created specific obligations with each beneficiary of the trust. In the instant case, the state does not enter into a contract with the birth parents at all, but determines the specific legal limitations on any adoptions contracts that are entered into. Most important to the court's analysis is the refusal of the legislature to ever completely seal adoption records and birth certificates. Since these records were always available at the discretion of the courts and the state registrar, and because the legislature never explicitly limited this discretion, the court found that there was no clear legislative intent to elevate the privacy concerns of the mothers over that of the adopted children. The court also discussed the plaintiffs' claims under the federal constitution that this Measure unconstitutionally interfered with their right to privacy in the decision to whether to bear or beget children. The court rejected this claim, finding that while the decision to bear or beget children is a unilateral one (within certain broad limits), the decision to terminate parental rights and adopt a child has always been subject to state review and approval. The court affirmed the trial court's dismissal of all of plaintiffs' claims.

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