Reconsidering the Presumption: A Proposal to Provide Arkansas’s Adult Adoptees Open Access to their Original Birth Records

by Westley Ashley

At a very young age, I knew I was adopted. My parents felt it was important to be honest with me about that fact, but at the same time, it was obvious. My parents are “black” Americans; they have darker skin tones and their hair is kinkier than my own; I am a “black, multi-racial” American whose features lend to being interpreted as native to many different parts of the world – Cuba, Persia, Ecuador, and even China.[1] I have only become comfortable with the label of “multi-racial” in the last five years. For years, I simply identified as a Black American due to my environment and lack of genetic and cultural history. This lack of history prevented me from developing a strong sense of self as a child. Subsequently, it has also left me feeling uncomfortable with my own identity as an adult.

After months of discussing “the search” with my mother when I was a teenager, I was given the only documentation my mother had regarding my biological parents. This information, which Arkansas law requires an agency or person involved in adoption proceedings to compile, contained a narrative from my teenage biological mother explaining she was unaware she was pregnant until the last few days before she went into labor. It also explained her family’s composition – one military father, one stay-at-home mom, a little sister, all Catholic and “Caucasian.” The only information pertaining to my biological father is extremely limited – he wore glasses, he did not smoke or do drugs, and he was “Black/Hispanic.”

Growing up, I would often get lost in the mirror wondering where my brown eyes came from or whose ears also had that funny crimp in the corner. I generally questioned any other feature I deemed odd. I am extremely uncomfortable around new people because I fear I will be asked the question I dread the most – What are you?[2] This uneasiness is not due to the poor form of the inquiry but, instead, reflects my own discomfort in not knowing how to honestly answer my own questions, let alone those of the stranger on the street who feels entitled to an answer.

The fact that, like thousands of other adoptees, Arkansas law treats me differently from other citizens only frustrates my attempts to feel comfortable in my own skin even further. With each visit to a new physician, adoptees face a medical history questionnaire in which they must repeatedly answer “Unknown / Adopted.” This exercise in repetition effectively drives home the point that I belong to the only class of Arkansans who are legally prevented from knowing their personal histories. In Arkansas, like many other states, an adopted person’s birth certificate is amended to list their adoptive parents and remove their biological parents.[3] Additionally, all court records and documents related to the adoption are sealed. This effectively prevents an adult adoptee in Arkansas from learning anything about their background that was not provided in documentation given to their adoptive parents when the adoption was finalized. The following discussion is my attempt to answer my own questions regarding the history of secrecy in Arkansas adoptions and to propose legislation to shift the presumption of secrecy in adoptions to one of openness.

The intent of this paper is four-fold: (i) to inform the reader of the history of privacy in the American and Arkansas adoption systems; (ii) to explain the current open access debate regarding an adult adoptee’s access to their original birth records; (iii) to present a survey of the various state response to searching adoptees; and (iv) to propose legislation that fairly balances the interests of the adult adoptee, the biological parents, and the adoptive parents (“the adoption triad”).

I.  Adoption is marked by changing constitutional and policy concerns but no explicit reason is found to explain denying adult adoptees access to information surrounding their birth.

The American adoption system has drastically changed alongside the evolution of the American family. This change is best understood by reviewing the history of adoption in the United States and Arkansas because it shows how a formerly open system changed to a system concerned with privacy. It also reminds the reader that the voice most often silenced in the adoption triad is the voice of the adopted person.

A.  The first adoptions were informal and did not convey rights; but after formalization, adoptions were primarily concerned with the distribution of property and the adoptive parents’ legal responsibilities to the adopted person.

Historically, there have been many types of adoptions subject to different degrees of regulation. At its earliest inception, adoption more closely resembled an apprenticeship.[4] This informal “adoption” phase began to formalize when Massachusetts passed the first adoption law in 1851.[5] Arkansas enacted its first adoption law on February 25, 1885.[6] Titled An Act to regulate the adoption of heirs, neither the text of the Act nor the subsequent case law interpreting the Act required the sealing of records – meaning the records of the proceedings were open to all members of the adoption triad as well as the public. The Act focused on procedural issues and property rights. The text of the Act laid out the jurisdictional requirements, requirements of the petition, rights and interests of the adopted person, legal roles of the adopting parents, and proof of the biological parents’ consent to the adoption.[7] Additionally, the case law stemming from the Act concerns the property rights of adopted individuals versus those of “blood relatives.”[8]

B.  The development of stigmas around illegitimacy and infertility in American culture ultimately lead to a shift in the adoption system’s approach to providing information to adoptees.

The earliest twentieth century adoption laws shielded adoption proceedings from public scrutiny rather than from the adoption triad members.[9] It was a common practice to disclose information to those most intimately connected to the adoption.[10] The role of confidentiality in Arkansas adoptions changed with the enactment of A.S.A. 1947, §§ 56-223, 56-224. Subsequently, Arkansas followed the popular trend of protecting the privacy of the parties involved in an adoption.[11]

By the middle of the last century, these protections evolved to create and maintain secrecy within the adoption triad – effectively cutting off the biological family from the adoptee and adoptive family.[12] Before 1930, states did not amend birth records after a child was formally adopted.[13] That meant adult adoptees only had to review their original birth certificates to learn about the cultures of their birth parents. During the 1930’s, states started to provide new birth certificates to adopted persons.[14] These new birth certificates listed the adoptive parents as the adoptee’s parents, as opposed to the biological parents. The purpose of this change was to legally create a family in which the adopted person was valued as a family member and not just an additional set of working hands.

As of 1935, six states provided access to court records only to the parties or by court order; four states kept the records of decree open to the public, but permitted the court to withhold remaining documents from inspection; and one state permitted access only by the issuance of a court order.[15] The balance of states that would grant access and states that would prohibit access would soon shift because of ongoing changes in American society.

By the late 1940’s, laws obliterating the adopted person’s access to court records had become the rule rather than the exception.[16] At the same time as adoptees lost access to court records, more states provided adoptees with new birth certificates while corresponding provisions were developed to limit access to the public to view these original birth certificates—but not to the adult adoptee.[17] Consistent with the times, the Uniform Adoption Act of 1953 provided that states must seal original birth certificates and copies of adoption decrees after the issuance updated birth certificates.[18] The Act implied adoptees could request their original birth certificates if they reached the age of majority.[19] This position on access would soon change quietly, with no articulated legal reasoning provided and likely not the result of happenstance.

In 1960, a new requirement that states report their adoption statutes and procedures to the Federal government exposed a significant shift in birth records policy.[20] Of the forty-nine states reporting and the District of Columbia, twenty-eight reported that original birth records were available only by court order.[21] However, twenty states (accounting for forty percent of all jurisdictions) indicated that adult adoptees could inspect their original birth certificates as of 1960.[22]

In 1969, the Uniform Adoption Act was amended to completely rescind an adult adoptee’s access to original birth records.[23] This rescission was simply left unexplained. The Arkansas General Assembly adopted portions of the Uniform Adoption Act in 1977, including the rescission language. In 1994, the Uniform Adoption Act was revised again to specifically obstruct adult adoptees from gaining access to their birth records for ninety-nine years.[24] This revision was a continuation of the attack on adult adoptees’ rights to access their birth records. Once this nearly universal regime of secrecy related to court records and birth records was established, the secrecy influenced society in such a way that actions once thought natural for an adult adoptee were seen as disfavored and abnormal.[25] Arkansas did not add the 1994 revision to the Uniform Adoption Act to its own adoption statute until 2003.[26] Through this amendment, state legislators affirmatively stripped the right to access their birth records for Arkansas’s adult adoptees.[27] Only two states – Alaska and Kansas – chose to maintain access for adult adoptees throughout their legal history.[28]

C.  The changing societal norms in America have fueled a modern adoption reform movement that focuses on eliminating secrecy from adoption proceedings.

The trend of preventing access to adult adoptees continued as recently as 1990, when Alabama closed original birth records and court records at the same time that it established a system for providing non-identifying information through a passive registry system.[29] Indicative of the speed at which societal norms can change, Alabama reversed its approach to open access for adult adoptees when it reopened its adoption records ten years later.[30] This quick turnaround appears to be a result of a successful campaign of lobbying the Alabama legislature for reconsideration.

The changing societal norms on family composition and the best interest of an adult adoptee should play a role in Arkansas’s reconsideration as well. Today it is hard to deny traditional American attitudes regarding want constitutes a family are rapidly evolving. Likewise, the stigma of illegitimacy is softer today than a decade or two ago.[31] Even more important for consideration is the change seen in adoption agencies and children’s advocates who now encourage adoptive parents to tell their children about the adoption process.[32] Likewise, advocates from both ends of the spectrum now support openness in adoption and an adult adoptee’s access to records.[33] This change in advocacy reflects a new understanding of the importance of openness and the impact of secrecy on an adoptee’s ability to develop a healthy sense of self. Not all members of the adoption triad agreed and therefore, the Open Access Debate continues.

II.  The Open Access Debate higlights one of the last areas of contention in the adoption system.

The current debate over an adult adoptee’s access to original birth records plays itself out on two levels. First, all sides of the adoption triad have sought to claim constitutional rights in order to benefit from special legal deference. Second, all sides of the adoption triad have claimed that the sealing or unsealing of adoption records is the correct public policy position. The current constitutional debate has failed to yield any judicial mandates on this topic. Therefore, the best hope to achieve adoption reform lies on the field of public policy.

A.  The Open Access Debate highlights a triad of constitutional interests.

Adoptive Parents: The open records debate centers on whether adult adoptees[34] should be able given to access to their original birth certificates and other records related to their adoptions. As a result, the adoptive parents that make up one leg of the adoption triad arguably have a smaller stake in the debate than the other two members of the triad. If adult adoptees could access their adoption records, adoptive parents would not be in a position to lose their privacy.

Some adoptive parents support a closed records system because they believe it would protect their child from hurtful information surrounding the circumstances of the child’s birth (e.g., rape, incest, or the sex trade). This argument may work when the adoptee is a minor, but the parents’ legal control over information disappears with all other legal rights to control a child once that child reaches the age of majority.[35] The author concedes his belief that adoptive parents have the least to fear from a policy of open access. Where currently allowed, access is not granted until the child is at least 18 years old. After such time, most adoptees (who know they are adoptees) do not question their adoptive parent’s devotion. They have had many years and experiences to learn just how many more hoops adoptive parents must jump through for a child. At the very least, adoptees have the opportunity to bond with their adoptive families as biological children would “normally” bond with their biological families.

Adoptive parents are increasingly vocal in the current call for adoption reform. Traditionally, states enacted sealed record laws for the benefit of adoptive parents as well. Today, many adoptive parents seem to favor understanding their child’s biological roots over their own protection through secrecy.[36]

Biological Parents: Biological parents, on the other hand, perceive themselves to have a significant interest in keeping adoption records sealed. Many of these parents chose adoption in an attempt to give the child and themselves a new life and hoped to preserve these new lives through maintaining secrecy.[37] Many biological parents feel slighted by this reformation trend because of representations of privacy and anonymity that agencies or states may have made at the time of the adoption.[38] Whether these representations matter is a major issue in the Open Access Debate and have not been definitively answered. Biological parents often argue absolute confidentiality was a condition of the adoption agreement they entered into. However, recognizing such a condition would mean courts would begin enforcing contracts for children—a position highly disfavored by public policy.

Birth parents who oppose the open records reform in America’s adoption system often raise constitutional arguments. Specifically, birth parents argue that the Due Process Clause of the Fourteenth Amendment protects them from a release of identifying information.[39] They argue such a disclosure would violate their rights to familial privacy.[40] These constitutional arguments may have succeeded in the past but the current trend of states that re-evaluate this issue is to override the courts by passing legislation to grant adult adoptees access to their records.[41] Nevertheless, research suggests the overwhelming majority of birth mothers support open records for adult adoptees.[42] Birth parents generally support the efforts of their biological children to secure access to records of their birth, despite a few exceptions.[43]

Adult Adoptees: Adult adoptees overwhelmingly support open access to the records of their birth.[44] They frequently use the same constitutional reasoning employed by birth parents but, unfortunately, their arguments in favor of open access have not fared as well in the courts.[45] Their arguments center on equal protection and the right of all adults to access information about their pasts.[46] Adult adoptees also argue that the right to privacy extends to an awareness of personal biological history.[47] They also argue that the Constitution protects a fundamental right to know one’s origins[48] and sealed record policies violate principles of equal protection.[49] Advocates have pushed forth the idea that denial of birth information violates a positive right of privacy.[50] These arguments all correctly highlight the fact that adoption creates a suspect class of citizens.

Regardless, courts have ruled against the argument that adoptees make up a suspect class for constitutional purposes by reasoning that since adoption is a choice, not an immutable characteristic, the status of being adopted does not rise to the level of strict scrutiny.[51] For adoptees, this reasoning leads to a legal avenue being blocked by factual falsity—after all; most adoptees have no choice in being adopted. At no point in the classic closed adoption scenario is the adopted person’s voice heard. Furthermore, the status of being adopted carries a stigma closely related to, if not identical to, illegitimacy – a status subjected to an intermediate level of scrutiny.[52] Despite these points, it appears the best legal solution to the issue of open access for adult adoptees remains a statutory solution to a public policy concern.

B.  Public policy arguments in support of open access to adoption records reflect the impact of secrecy on adoptees.

The primary public policy arguments in favor of adult adoptees’ access center on the psychological and physical health of adult adoptees. Sociopsychologists now consider fully understanding one’s identity and heritage an important psychological and social need.[53] Arthur Sorosky, a psychiatrist and author of The Adoption Triangle, explains that three separate forces form identity concurrently – the psychological, psychosocial, and psychohistorical forces.[54] The psychohistorical dimension of identity relates to a person’s sense of genealogy.[55] Since most adoptees cannot access information about their birth parents and the circumstances surrounding their births, many adoptees lack the psychohistorical dimension of identity creation that contributes to the adoptees’ need to seek their “origins story” by searching for an original birth certificate, adoption records, and biological parents.[56] Adult adoptees also seek access to original birth information out of an existential need to find authenticity and truth in one’s life.[57] The proponents of this claim assert that an adoptee’s search is crucial in achieving greater mental health.[58]

Additionally, adoptees who seek out information regarding their birth and adoptions are actually searching for social acceptance.[59] Many adult adoptees sense that people treat them differently once their adopted status is learned and that society stigmatizes adoptive families as “different.”[60] Adult adoptees have reported feeling the social stigmatization the most when others inquire about their origins.[61] This stigmatization comes from the adoptees’ perceptions that others are making negative assumptions about the circumstances of the adoptees’ births.[62]

Adoptees are capable of gaining social acceptance by finding answers to questions about their biological background.[63] They gain this social acceptance because the adoptee gains power over their presentation of self and over the negative assumptions that others often make about an adoptee’s biological history and circumstances surrounding their adoption.[64] Additionally, systems that deny adoptees the choice to come to terms with their biological parents’ heritage as a part of their own identity prevent a full realization of self-worth.[65] Common scenarios in which the adoptee does not favor the adoptive family exacerbate the adoptee’s ability to form a healthy self-image.

Open access advocates also point to the personal and state health care crises that often result from an adoptee not having access to any information regarding their genetic predispositions.[66] This argument has weakened with the successful mapping of the human genome. Current predictions regarding the widespread application of this new technology could mean this argument is moot within ten years. Until those predictions manifest and adult adoptees can affordably access genome mapping, this argument still carries some weight. Preventive health screening of BRCA1and BRCA1 (the human breast cancer gene and its protein product, respectively) and cholesterol limits are covered under the Patient Protection and Affordable Care Act, but the patient must be able show they are predisposed to breast cancer or high cholesterol levels in order to qualify for early testing, or testing at all.[67]

Open access advocates also question the fairness of binding adult adoptees to secrecy without their consent, especially after the adoptee has reached the age of majority and the state no longer has an interest in protecting the once minor adoptee.[68] This could be an even stronger argument than the need for genetic information. If the goal of the adoption process is to do what is in the best interest of the child adoptee, it seems unconscionable to hold the adult adoptee to conditions imposed upon him or her as a child that deprive to deprive the adult of information a reasonable person may want.

C.  Public policy is often relied on to show why open access should not be granted to adult adoptees.

Opponents to open access assert it would unfairly rescind promises of anonymity made to women who surrendered children for adoption in the past.[69] As the earlier discussion of the history of confidentiality in adoption shows, anonymity has not always been an element of adoption and it is not absolute under Arkansas’s law. In Arkansas, courts and the legislature may open adoption records. Opponents to access argue that allowing adult adoptees to obtain their information forces biological parents into unwanted relationships with the children they surrendered.[70] Those who use this argument often refer to birthmothers who were victims of rape or incest and who wish to maintain secrecy about their experiences.[71] This argument also assumes that adoptees will force themselves on biological mothers who have not told their husbands, children, or other family members, resulting in the biological mother being shamed and humiliated when her secret is revealed.[72] The point missed by this argument is that an adoptee’s right to information is not a right to a relationship. Additionally, research and the experiences of active registry and confidential intermediary programs have shown the majority of biological parents are eager for contact with surrendered children.[73]

Another fear of open access opponents is that without the guarantee of anonymity, more women that are pregnant will opt for abortion instead of adoption.[74] Opponents to open access state that the number of women who would make such a decision is impossible to quantify, but “the loss of human potential from even one abortion that could have been an adoption is unknowable.”[75] There is no evidence that allowing adult adoptees to access their adoption records increases abortion or decreases adoption.[76] Oregon is one of the few states where people can test this theory, as it once closed access to adult adoptees and restored such access close to two decades ago. The Oregon Center for Health Statistics and Vital Records reports that the number of induced abortions performed in the state dropped 18.2 percent in the first four years following the restoration of access to records.[77] Further analysis in other states that have restored access to records would provide more support to counter this concern.

Finally, opponents to open access argue that open access for adult adoptees undermines the institution of adoption.[78] This argument contends that allowing adopted adults access to original records regarding their birth will make adoption a less viable way to form families.[79] Despite this contention, adoption appears highly adaptable, as social, cultural, and economic influences on the best interests of adoptees have evolved greatly over time. Moreover, adoption statistics in states that have always allowed adult adoptees access to open records show just the opposite – adoption remains viable even when adult adoptees have access to their information.[80]

III.  Due to individual states historically regulating adoption within their respective boundaries, there are various state approaches to open access to original birth certificates and other adoption-related court records.

The refusal of Arkansas’s judiciary to wade into the constitutional issues regarding open access for adult adoptees mirrors courts throughout the nation. There are currently four differing state approaches to the open access issue: (i) a showing of “good cause”; (ii) a passive-registry system; (iii) a presumption of openness with the creation of a “disclosure veto”; and (iv) a simple presumption of openness. Arkansas actually applies the first and second approaches. Unfortunately, both approaches still presume secrecy rather than openness.

A.  The “good cause” approach to providing access to adult adoptees is poorly defined and extremely problematic.

Currently twenty states[81] and the District of Columbia[82] allow adoptees to gain access to their adoption records by court order only. Those courts only issue such orders if a petitioner shows good cause[83] or passes a test to determine whether disclosure would be in the best interest of the child.[84] This is often an insurmountable burden for adult adoptees attempting to gain access to adoption records. Since each state defines good cause differently, if at all, applicants struggle to develop the best argument to sway judges to open previously closed adoption records.[85] Furthermore, most adoptees have no clear guidelines to follow when filing petitions or arguing their cases before a judge because judges interpret the good cause standard on a case-by-case basis.[86] Courts have drawn widely divergent lines in determining what facts constitute good cause, offering adoptees no consistent judicial guidance on the issue.[87] For example, some courts, at least in theory, will accept psychological need as good cause[88] while other courts hold “medical necessity” a condition of good cause, requiring a “no-other-way-out” fact situation to order the release of records.[89]

Arkansas’s case law on this subject is limited, at best, and potential petitioning adoptees have no way of knowing what set of facts and circumstances will succeed before any particular judge. As a result, adoptees in Arkansas face a daunting task in drafting successful arguments to open their adoption records.

B.  States attempt to balance the privacy concerns of the triad members by allowing access with the permission of biological parents, but these attempts remain unduly burdensome on the adult adoptee.

Even though twenty states currently allow adult adoptees some degree of access to their birth records by court order,[90] most employ a passive-registry system that often requires the birth parent to register before the adoptee can learn the birth parent’s identity.[91] Arkansas employs such a system[92] in order to offer those adoptees unable to show “good cause” another way to access their birth records. A lack of public awareness of this system is a problem, at least in Arkansas. For biological parents who surrendered their child before the implementation of this registry in Arkansas, proper advertising and notification of the registry’s existence seems a reasonable step to ensure its success. The author’s experience with the registry has not been a successful one due to what seems to be a very lackadaisical attitude by the entity that runs the registry.

C.  Some states have open access systems but limit that access with the use of a disclosure veto, which requires biological parents to actively prevent disclosure of original birth and adoption records.

Currently, five states[93] provide adult adoptees access to the records of their adoptions unless a birth parent objects.[94] This is accomplished either by registering a nondisclosure affidavit with the required agency[95] or by requesting the identifying information not be revealed to the adoptee once the agency contacts the birth parent pursuant to the statute.[96] In these states, once an adoptee petitions the court or the proper agency to release their adoption records, the court or agency must comply unless an affidavit is on file at the time or the birth parent refuses disclosure upon contact by the court or agency.[97] This system is very similar to the permission system outlined above. One major distinction between these systems makes the disclosure veto system more appealing to searching adoptees. The disclosure veto system provides adult adoptees a greater chance of receiving requested information because nondisclosure requires affirmative action on the part of the birth parent. It is within this system that the state of Tennessee took inspiration for the creation of a “contact veto.”

D.  The unrestricted access to records approach is the best approach when coupled with a “contact veto.”

Currently, six states[98] allow adult adoptees to access their birth and adoption records without any hearings or permissions. These statutes vary in terms of complexity; nonetheless, all provide the same degree of access that many adult adoptees argue should be the norm and not the exception. This access appears to be based each of the respective state legislatures realizing the need all adoptees have for open access to their birth records. In each of these states, the adult adoptee simply requests a copy of their original birth certificate from the court.[99] There is no question of whether the birth parent knows a registry exists, or how to show the court you have good cause to access these records, or any of the other questions that Arkansas’s adult adoptee face daily in their search for information.

As an added protection for the biological parent, four[100] of the six states that provide unrestricted access to birth records also allow for a “contact veto.” This contact veto allows the biological parent to designate that they do not wish the searching adoptee to contact them. The contact veto is normally employed after the appropriate state agency has received a request from the inquiring adult adoptee. The state agency will then notify the biological parents that it has received a request from their biological child and they can avoid contact with this person, in any form or fashion, through a contact veto.

This contact veto circumvents the potential constitutional privacy arguments biological parents have successfully used to challenge open access systems in the past. The contact veto differs from the previously discussed disclosure veto in that it does not prevent the release of any records to adult adoptees. Instead, the contact veto imposes civil or criminal penalties on those adult adoptees who violate the veto. Of utmost importance is the shift in presumption from secrecy to openness created by the use of a contact veto in conjunction with a policy of open access. These states provide adult adoptees vital information and respect the wishes of birth parents at the same time. By shifting the presumption in Arkansas, the legislature could implement a plan to protect the wishes of biological parents who want to prohibit communication with adult adoptees while respecting the wishes and needs of the searching adoptees.

E.  The current path to access in Arkansas is actually two paths to access that sometimes overlap but both presume secrecy over openness.

In Arkansas, an adult adoptee must go through the costly and time-consuming process of petitioning the probate court for a finding of “good cause” and an issuance of a court order to unseal original birth records. The finding of “good cause” is at the discretion of the judge, and Arkansas’s adoption case law lacks a clear explanation of just how “good cause” is determined. The “good cause” requirement is a virtual roadblock for many Arkansas adoptees. The creation of a passive, Voluntary Mutual Consent Registry for Arkansas’s adoption triad members appears to be more of a symbolic gesture than a viable second path to accessing original birth-related information for adoptees who cannot prove the “good cause” standard in court. As experienced by the author, Arkansas’s passive registry system is the quintessential definition of passive. Anecdotally, the Registry commonly comes up in conversations about adoption. Often times other adoptees, as well as biological parents, are shocked to learn such a resource exists. Even if the State allocated more funds to the Registry to increase public awareness, the State would have adoption laws that presume secrecy over openness. Of the four current approaches to open access for adult adoptees, Arkansas has implemented two of the four approaches.

Yet, Arkansas law still treats adult adoptees as second-class citizens. Arkansas’s adoption laws still presume adoptees have no right to the basic and formative information found in court records and original birth certificates, all due to the blood relation of the inquiring person to their legal parent. The only viable way for Arkansas to balance the conflicting interests involved in the open access debate over adoption records appears to be a statutory provision similar to that of Tennessee or Oregon – two states that presume an adult adoptee has the right to open access but grants biological parents the ability to prevent contact by the adult adoptee.

IV.  In order to end the second-class treatment of adult adoptees, the Arkansas General Assembly should reconsider the issue of open access for adult adoptees and modify Arkansas’s adoption laws to resemble Tennessee Code § 36-1-127, which shifts the presumption of secrecy in adoption to a presumption of openness.

Nearly fifteen years ago, the Arkansas General Assembly attempted to modify Arkansas’s statutes regarding access to adoption records to allow adopted individuals access to their adoption files upon turning eighteen.[101] That attempt took place around the same time that Tennessee and Oregon’s open access legislation was challenged in the courts.[102] Arkansas’s attempt to modify adoption access rules most likely failed due to a combination of constitutional challenges in other jurisdictions, a lack of evidence for open access arguments, and the relative newness of the open access trend in general. Arkansas’s legislators chose to retain a somewhat modified sealed record regime, which attempts to balance the concerns of open access proponents and opponents with a passive registry. Though the intentions of the Legislature are praiseworthy, the legislative scheme is nonetheless flawed by its presumption of secrecy. Without any explanation from the Arkansas General Assembly, one is left to believe the continued presumption of secrecy relies on the unfounded belief that absolute secrecy is guaranteed to parents who surrender their children for adoption.

The changing nature of adoption and its related laws warrants a periodic review of adoption laws by Arkansas legislators. Recent case law on open access, new social science insights, and empirical evidence collected from a handful of states with open access policies all make the reconsideration of Arkansas’s stance on open access a necessity. After reviewing the public health benefits and legal basis to granting open access to adult adoptees, the Arkansas legislature would find Tennessee Code § 36-1-127 a concrete starting point to draft Arkansas’s shift from secrecy to openness.

A.  If the state has a legal basis to continue its policy of sealing adoption records, it the principle of parens patrie which may only last until the adoptee reaches the age of majority.

Pursuant to the common law doctrine of parens patriae, the State is the protector of “those unable to care for themselves.”[103] In that role, the State must “protect and promote the welfare of children.”[104] The State commonly flexes its parens patriae power when it terminates parental rights. Likewise, the State relies on the doctrine of parens patriae when it creates parent-child relationships. Adoption proceedings are nothing more than the State exercising its parens patriae power to form legal parent-child relationships.[105] When approving adoptive parents for a child, the State acts as the child’s agent in selecting parents that will be in the child’s best interest.[106] The doctrine of parens patriae is well established in the American legal systems handling of individuals under the age of majority. In light of Arkansas’s scant legislative history and the lack of guidance related to the Uniform Adoption Act’s reversal on granting adult adoptee’s open access to original birth certificates and records, the doctrine of parens patriae is the only ascertainable legal basis for preventing access to adoption records.

Under this legal basis, the State is concerned with what is in the best interest of the child and attempts to ensure that adoptees and their adoptive families have every opportunity to bond and develop into true families. The State employs secrecy to reach its goal of protecting the best interests of children. This concern trumps the adoptee’s interest until the child reaches the age of majority and becomes an adult adoptee—at the very latest. Once the child adoptee becomes an adult adoptee, the doctrine of parens patriae no longer applies and the adult adoptee’s interests should be favored over those of the biological parents.

Arkansas should adopt open access policies for adult adoptees because the state lacks parens patriae interests and adult adoptees may be denied potentially lifesaving preventive health screenings without such open access policies. The passage of the Patient Protection and Affordable Care Act of 2010 ushered in a new era of mandatory preventive health care benefits. The restraints placed on accessing adoption records prevent adoptees from fully reaping the benefits of this new provision. For example, cholesterol screenings[107] and breast cancer genetic test counseling (or the BRCA1/BRCA1 test)[108] are limited to patients who can show a family history of risk to these medical conditions or diseases. Though some health insurance plans may waive such showings of family history for plan members who can show they were adopted and cannot access their medical histories, adoptees are nonetheless held captive to a decision of their health plan and have no control over their own medical care. The inability of many adult adoptees to make educated decisions about their personal health and the state’s loss of its parens patriae interest at the time the child adoptee reaches the age of majority both provide Arkansas General Assembly with a strong legal basis to shift the presumption of secrecy in adoption to openness.

B.  Tennessee Code Annotated § 36-1-127 is a balanced, legislative approach to resolving the open access debate in Arkansas.

Tennessee’s legislators constructed legislation that clearly explained their intent and designated who could access adoption records. Subsection (a) of Tennessee’s open access legislation notes the exact date when Tennessee’s adoptee’s records became sealed and explains that the intent of the Legislature is to re-establish access for adult adoptees whose records had previously been sealed.[109] Subsection (c)(1)(A)(i) lays out who may actually receive the previously sealed information.[110] Adopted persons, their parents and siblings, their lineal descendants who have reached aged twenty-one, and their legal representatives may all receive adoption and original birth records.[111] If the adopted person happens to be deceased or is in a guardianship, the adoptee’s lineal descendants may petition the court to access the adoptee’s records.[112] The lineal descendant is also subject to the terms of contact veto provision of Tenn. Code Ann. § 36-1-1227.

The Tennessee legislation is the best means of balancing the interests of the adult adoptee with those of the biological parents because it provides a clear process to request access to an adoption record[113] and introduces a contact veto system that allows the biological relatives to request the adopted person not attempt to contact them.[114] The requesting person may not contact anyone eligible for a contact veto, whether by personal contact, correspondence, or other means.[115]

C.  The Arkansas General Assembly’s use of Tennessee Code § 36-1-127 as a legislative model is likely to result in legislation that would withstand an unavoidable constitutional challenge.

Of the states that have closed access to adoption records and then later reopened those records to adult adoptees, Tennessee and Oregon are the only states in which the statutes have been subjected to appellate level review.[116] Though not binding on Arkansas’s interpretation of its own laws, the reasoning in these cases appear logical and reliable guides when revisiting the issue of access to Arkansas adoption records because both courts work to provide a thorough legal analysis of the common issues of the Open Access Debate. In Tennessee, adoptees aged twenty-one or older may access their sealed adoption records and their biological parents and lineal relatives may sign a contact veto to prevent the adoptee from contacting them.[117] In Oregon, voter initiated and approved ballot Measure 58 granted adult adoptees aged twenty-one or older access to their records. Both states’ laws faced legal challenges based on interests and fears with which the reader should now find familiar.

In Doe v. Sundquist, a group of biological mothers claimed the Tennessee law granting adult adoptees open access violated birth parent privacy under the Tennessee Constitution.[118] The Tennessee Supreme Court, acknowledging that such rights exist under the U.S. Constitution as well, held that birth parent privacy should not be accepted as a basis for barring adult adoptees’ access to any records related to their respective birth and adoption because birth parental privacy assertions are too speculative, differ too greatly from the protections traditionally granted as a penumbra of the right to privacy, and do not sufficiently overcome society’s interest in adoptee access to this type of information.[119]

When addressing the biological mothers’ claim that the open access statute violated the biological parents’ reproductive privacy, the court emphasized the purpose of adoption rights and suggested that the plaintiffs’ reproductive privacy argument was misdirected.[120] The court also rejected claims of violations of the right to informational privacy by deciding biological parents lacked a fundamental right not to have personal information released to their biological children.[121]

Measure 58 was the voter-enacted initiative in Oregon that, when passed, gave adult adoptees a procedural way to access their original birth records.[122] In 2000, a few of Oregon’s biological mothers challenged Measure 58 by arguing a claim utilized in Tennessee – that it violated their constitutionally protected fundamental right to reproductive privacy.[123] The Oregon Court of Appeals approached this claim differently than the court it Sundquist did. In Does, the court held that the fundamental right to privacy does not apply to adoption because of its statutory nature.[124] “Since a birth mother has no fundamental right to have her child adopted, she can have no correlative fundamental right to have her child adopted under circumstances that guarantee her identity will not be revealed to the child.”[125] In other words, the statutory nature of adoption undermines a biological parent’s privacy assertion. This analysis potentially presents an even stronger defense against claims of privacy rights violations than the analysis provided by the Sundquist court.

The Tennessee and Oregon cases and the fact that similar statutes have survived appellate level review all show that Arkansas can survive constitutional challenges if it adopts open access policies. States like Tennessee, Oregon, Alabama, and Alaska also show that the trend towards openness in records is a bipartisan issue that all members of Arkansas’s General Assembly can embrace.

V.  Conclusion

Though the Tennessee approach best balances the interests of the adult adoptees with the interest of other triad members, it is not perfect. For example, Tennessee’s statutory scheme requires written consent from the biological parent for the release of any identifying information from the sealed adoption or post-adoption records if such records indicate that, with respect to the adopted person, the biological parent was the victim of rape or incest.[126] This effectively means Tennessee applies the disclosure veto approach for adult adoptees that were the product of rape or incest. The application of the disclosure veto in this approach seems slightly disingenuous considering all other adoptees have open access under the Tennessee law. Additionally, if the legal basis supporting the shift in presumption is strongest when considering an individual’s ability to make informed and educated decisions regarding the adoptee’s health, the prohibition on information for this small subset of adoptees is not justified. This just goes to show there are areas in which Arkansas legislators could tweak the Tennessee law to ensure that expired or non-existent interests of other members in the adoption triad no longer hinder Arkansas adoptees.


Westley Ashley received a Bachelor of Arts with a major in Anthropology from Texas A&M University in 2004. Westley is an adult adoptee whose “search” has had numerous levels of intensity and a graduating 4L at the William H. Bowen School of Law. While in law school, Westley attempted to focus his efforts on public service and social justice projects all while making time with his growing family a top priority. The universe has thrown him an unexpected opportunity in the realm of corporate health law, but Westley envisions public interest and elder law being a long-term career theme.

[1] In-depth conversations on Black identity, the “one drop” rule, the reality of color blindness, and other topics highlighting the variation within the black community are important and necessary; they also are beyond the scope of this proposal.

[2] A question normally answered “Homo sapiens sapiens.”

[3] See generally, (accessed Mar. 27, 2014).

[4] Lauren M. Fair, Shame on the US: The Need for Uniform Open Adoption Records Legislation in the United States, 48 Santa Clara L. Rev. 1039, 1042 (2008).

[5] Id. at 1042-43.

[6] Act XXVIII, An Act to regulate the adoption of heirs, Acts 1885, 32.

[7] Id.

[8] See Morris v. Pendergrass’ Adm’r, 59 Ark. 483 (1894); Dean v. Brown, 216 Ark. 761 (1950).

[9] See Joan Heifetz Hollinger et al., Adoption Law and Practice § 13.01[1] (2000).

[10] E. Wayne Carp, Family Matters: Secrecy and Disclosure in the History of Adoption, 100 (1998).

[11] A.S.A. 1947, §§ 56-223, 56-224

[12] Annette Ruth Appell, Blending Families Through Adoption: Implications for Collaborative Adoption Law and Practice, 75 B.U. L. Rev., 997, 1005 (1995); see also, e.g., Burton Z. Sokoloff, Antecedents of American Adoption, 3 Future of Children 17, 21 (Spring 1993).

[13] See mary ruth colby, u.s. dep’t of labor, children’s bureau pub. No. 262, problems and procedures in adoption 120 (1941).

[14] Elizabeth J. Samuels, The Idea of Adoption: An Inquiry into the History of Adult Adoptee Access to Birth Records, 53 Rutgers L. Rev. 367, 376 (2001).

[15] Carl A. Heisterman, A Summary of Legislation on Adoption, 9 Soc. Serv. Rev. 269, 269 (1935).

[16] katarine wegar, adoption, identity, and kinship: the debate over sealed birth records, 25 (1997); Naomi Cahn & Jana Singer, Adoption, Identity, and the Constitution: The Case for Opening Closed Records, 2 U. Pa. J. Const. L. 150, 157 (1999).

[17] Samuels, supra note 13, at 377.

[18] Unif. Adoption Act § 14(2) (1953), reprinted in Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings (1953).

[19] Jennifer Butch, Finding Family: Why New Jersey Should Allow Adult Adoptees Access to their Original Birth Certificates, 34 Seton Hall Legis. J. 251, 260 (2010).

[20] Nat’l Office of Vital Statistics, U.S. Dep’t of Health, Educ., & Welfare, Digest of Statutory Provisions and Administrative Procedures for Adoption as Related to the Birth Certificate (1960).

[21] Id.

[22] Those states were Alabama, Alaska, Arizona, Connecticut, Florida, Georgia, Idaho, Illinois, Kansas, Louisiana, Massachusetts, Montana, Nevada, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Utah, and Wyoming. See id.

[23] Samuels, supra note 13, at 390.

[24] Unif. Adoption Act § 6-107 (1994), (accessed Oct. 21, 2014).

[25] Samuels, supra note 13, at 368.

[26] 2003 Arkansas Laws Act 650 (H.B. 1291)

[27] Butch, supra note 18, at 260.

[28] See Alaska Stat. § 18.50.500 (LEXIS 2000); Op. Alaska Att’y Gen., No. 883-86-0110, 1986 WL 81152 at 1 (June 5, 1986) (citing the history of access to original birth certificates by adult adoptees); Kan. Stat. Ann. § 65-2423(a) (1992) (permitting release of original birth records to adoptees).

[29] See Ala. Code §§ 26-10A-32 (citing 1990 Ala. Acts 90-554), 26-10-4, 26-10A-31 (citing 1990 Ala. Acts 90-554), 26-10-5 (2000).

[30] Id. at § 26-10A-31(g) (2000).

[31] Heidi Hildebrand, Because They Want to Know: An Examination of the Legal Rights of Adoptees and Their Parents, 24 S. Ill. U. L.J. 515, 522-23 (2000).

[32] Carp, supra note 9, at 131-35.

[33] See Bastard Nation Mission Statement, bastard nation (last accessed Oct. 21, 2014) (explaining that Bastard Nation is a “radical organization” formed in 1996 that lobbies for unrestricted access to all adoption records by adult adoptees). See also, Openness in Adoption, child welfare league of america, (last accessed Oct. 21, 2014).

[34] Regarding access to adoption records, the definition of the age of adulthood ranges from eighteen (see, e.g., 23 Pa. Cons. Stat. Ann. § 2905 (West 2001)) to twenty-five (see, e.g., Neb. Rev. Stat. § 43-130 (1998)).

[35] Rosemary Cabellero, Open Records Adoption: Finding the Missing Piece, 30 S. Ill. U. L.J. 291, 297 (2006).

[36] See Hildebrand, supra note 30, at 536-37 (discussing study indicating that eighty-three percent of adoptive mothers and seventy-three percent of adoptive fathers believe adoptees should be able to access their original birth certificates).

[37] See National Council for Adoption, State Legislation and Mutual Consent Registries, in Families by Law: An Adoption Reader 145, 145 (Naomi R. Cahn & Joan Heifetz Hollinger eds., 2004) (providing the National Council for Adoption’s stance that “privacy should not be removed from the adoption process unless all parties agree”).

[38] Cabellero, supra note 34, at 297; Hildebrand, supra note 30 at 533.

[39] See, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).

[40] See Meyer v. Nebraska, 262 U.S. 390 (1923) (holding that the right to privacy extends to the parental prerogative to raise a child in the way the parents best see fit).

[41] See infra notes and accompanying text

[42] Brett S. Silverman, The Winds of Change in Adoption Laws: Should Adoptees Have Access to Adoption Records?, 39 Fam. Ct. Rev. 85, 92 (2001) (citing multiple studies showing that almost ninety percent of birth parents support open records).

[43] See generally Naomi Cahn & Jana Singer, Adoption, Identity, and the Constitution: The Case for Opening Closed Records, 2 U. Pa. J. Const. Law 150 (1999).

[44] Id. at 179-80.

[45] At this point, no case brought by adult adoptees based on constitutional arguments has succeeded in court. Some states, like Tennessee, have ruled that open records statutes passed by legislatures are in fact constitutional. See generally, Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999).

[46] See, e.g., ALMA Society v. Mellon, 601 F.2d 1225 (2nd Cir. 1979).

[47] See, e.g., In re Annetta Louise Maples, 563 S.W.2d 769 (Mo. 1978).

[48] See, e.g., Evan B. Donaldson Adoption Inst., For the Records: Restoring a Legal Right for Adult Adoptees 9, 12 (2007), (accessed Oct. 19, 2014).

[49] The equal protection argument focuses on the idea that all other person, except adoptees, have access to their original birth information, and that the state lacks a compelling interest to make such a harmful classification. See, e.g., Caroline B. Fleming, The Open-Records Debate: Balancing the Interests of Birth Parents and Adult Adoptees, 11 Wm. & Mary J. Women & L. 461, 469-471 (2005).

[50] Cabellero, supra note 34, 302-03. As to constitutional privacy, proponents of open access often argue the right to privacy incorporates the right to control intimate information like one’s birth record. Id.

[51] Audra Behne, Balancing the Adoption Triangle: The State, the Adoptive Parents, and the Birth Parents – Where Does the Adoptee Fit In?, 15 Buff. Jour. Pub. Int. Law 49, 67 (1996-1997) (pointing out the irony in the courts’ distinction between choice and immutability and noting that the adoptee had no choice in the matter).

[52] See generally, Ramos v. Town of Vernon, 331 F. 3d 315, 321 (2003).

[53] M.P. Sobol & J. Cardiff, A sociopyschological investigation of adult adoptees’ search for birth parents, 32 Family Relations 477 (1983).

[54] Arthur D. Sorosky et al., The Adoption Triangle, 13-14 (1st Ed. 1978).

[55] Id. at 14.

[56] Id.

[57] Mary J. Jago Krueger & Fred J. Hanna, Why Adoptees Search: An Existential Treatment Perspective, 75 J. Counseling & Dev. 195, 195 (Jan./Feb. 1997). (“Existentialism deals with primary, inescapable, and transcultural…aspects of human existence. It is concerned with an individual’s struggle to come to terms with one’s being-in-the-world. It deals with the authenticity of one’s existence…and the desire to attain meaningfulness and one’s intrinsic freedom”).

[58] Id. at 195-96.

[59] Karen March, Perception of Adoption as Social Stigma: Motivation for Search and Reunion, 57 Journal of Marriage and the Family 653, 654 (Aug. 1995).

[60] Id. at 656.

[61] Id.

[62] Id.

[63] Id. at 658.

[64] Id.

[65] See Hilderbrand, supra note 30, at 527-28.

[66] Why Adoptive Parents Support Open Records, bastard nation, (accessed Mar. 3, 2015).

[67] Preventive health services for adults, (accessed Mar. 3, 2015); Preventive health services for women, (accessed Mar. 3, 2015).

[68] Donaldson, supra note 47, at 14.

[69] Id. at 17.

[70] Thomas C. Atwood, Consent or Coercion? How Mandatory Open Records Harm Adoption, In Adoption Factbook IV 461-68 (2007).

[71] Donaldson, supra note 47, at 18.

[72] Id.

[73] Id.

[74] Donaldson, supra note 47, at 19; see Atwood, supra note 68, at 461-68.

[75] Atwood, supra note 68, at 464.

[76] Donaldson, supra note 68, at 19-20.

[77] Id. at 20.

[78] Id. at 22.

[79] Hildebrand, supra note 30, 515-539.

[80] Donaldson, supra note 47, at 22.

[81] Ark. Code Ann. § 9-9-506 (LexisNexis 2002); Colo. Rev. Stat. § 19-5-402 (2004); Fla. Stat. Ann. § 63.162 (West Supp. 2005); Ga. Code Ann. § 19-8-23 (2004); Idaho Code § 9-342 (Michie 2004); 750 Ill. Comp. Stat. Ann. 50/18 (West 1999); Ind. Code Ann § 31-19-24-2 (LexisNexis 2003); Iowa Code Ann. § 600.16A (West Supp. 2004); Ky. Rev. Stat. Ann. § 199.570 (Michie 2004); La. Rev. Stat. Ann. § 40:73 (West 2001); Me. Rev. Stat. Ann. 18-A, § 9-310 (West 1998); Md. Code Ann., Fam. Law § 5-329 (Michie 2004); Mo. Ann. Stat. §§ 453.120 and 453.121 (West 2003); Mont. Code Ann. § 42-6-109 (2003) (providing access to adoptees placed before 1967 without restriction, and access to adoptees placed after 1997 unless a birth parent has filed a disclosure veto); Nev. Rev. Stat. Ann. § 127.140 (Michie 2004); N.J. Stat. Ann. § 9:3-52 (West 2002); N.Y. Pub. Health Law § 4138-c (Consol. Supp. 2004) (providing for a mutual-consent registry but only disclosing information through that registry if such disclosure is found to be in the “best interest” of the adoptee or birth parent); N.C. Gen. Stat. § 48-9-105 (2003); Tex. Fam. Code Ann. § 108.003 (Vernon Supp. 2004-2005); Va. Code Ann. § 63.2-1246 (LexisNexis 2002).

[82] D.C. Code § 16-311 (Supp. 2004) (allowing access only upon a showing that disclosure would serve the “welfare of the child”). The District of Columbia Court of Appeals has held that in a case where the adult adoptee has obtained consent of both the birth parents and the adoptive parents and wishes to examine the record of her adoption, her welfare would be served by opening the records; See also In re D.E.D., 672 A.2d 582, 584 (D.C. 1996). The court distinguished the case from one in which the adoptee did not know beforehand the identity of her birth parents and wished to open the file for that particular reason.

[83] See, e.g., Ark. Code Ann. § 9-9-217(a)(2)(A) (2012).

[84] See, e.g., D.C. Code § 16-311 (2003).

[85] Behne, supra note 50, at 71-72 (addressing the problem of a judicially-defined, as opposed to a statutorily-defined, good cause standard).

[86] Florida is the only state that makes an effort to provide a statutory definition of good cause. Fla. Stat. Ann. § 63.162 (West Supp. 2005) instructs the consideration of the “reason the information is sought,” any alternatives to releasing the identity of the birth parent, the wishes of each concerned party, the “age, maturity, judgment, and expressed needs of the adoptee,” and any recommendation for or against disclosure made by the agency responsible for the original adoption. Id.

[87] Behne, supra note 50, at 71-74.

[88] See Doe v. The Ward Law Firm, 579 S.E.2d 303, 306 (S.C. 2003) (finding sufficient good cause when an adopted child faced serious mental health problems as well as “respiratory problems and a cyst on his brain”).

[89] See, e.g., In re George, 625 S.W.2d 151 (Mo. App. 1981) (holding that a fatal leukemia condition that could potentially be treated with a bone marrow transplant from a close blood relative was not sufficient good cause to open an adult adoptee’s records).

[90] Ariz. Rev. Stat. § 8-121 (West Supp. 2004); Cal. Fam. Code § 9203 (West 2004); Conn. Gen. Stat. § 45a-751b (West 2004); Mass. Gen. Laws ch. 210, § 5D (West 1998); Mich. Comp. Laws Ann. § 710.68 (West 2002) (providing, for adoptions finalized between May 28, 1945, and September 12, 1980, that adult adoptees can access identifying information from their birth records only if the birth parent has filed a written consent with the Central Adoption Registry; for adoptions finalized before May 28, 1945 and after September 12, 1980, adult adoptees may receive information as long as no written denial of consent has been filed by the birth parent); Neb. Rev. Stat. § 43-131 (1998); N.H. Rev. Stat. Ann. § 170-B:19 (Lexis Supp. 2004); N.M. Stat. Ann. § 32A-5-40 (West 2003); N.D. Cent. Code § 14-15-16 (2004); Ohio Rev. Code Ann. § 3107.41 (West 2000); 23 Pa. Cons. Stat. § 2905 (West 2001); R.I. Gen. Laws § 15-7-2 (2003); S.C. Code Ann § 20-7-1780 (West Supp. 2003); S.D. Codified Laws § 25-6-15.3 (West 2004); Utah Code Ann. § 78-30-18 (2002); Vt. Stat. Ann. tit. 15-A, § 6-104 (LexisNexis 2002); Wash. Rev. Code § 26.33.343 (West 1997); W. Va. Code Ann. § 48-23-501 (Michie 2004); Wis. Stat. § 48.433 (West 2003); Wyo. Stat. Ann. § 1-22-203 (LexisNexis 2003).

[91] For a more thorough discussion of the types of registry systems employed in the states, see Cahn & Singer, supra note 15, at 162-67. The authors analyze in great detail the difference between “passive” and “active” systems.

[92] Ark. Code Ann. § 9-9-501

[93] Del. Code Ann. tit. 13, § 962 (1999); Haw. Rev. Stat. § 578-15 (1993); Minn. Stat. Ann. § 259.89 (West 2003); Miss. Code Ann. § 93017-215 (West 1999); Okla. Stat. Ann. tit. 10, § 7505-6.6 (West Supp. 2005).

[94] Michigan allows access to information unless birth parents object, depending on when the adoption was finalized; see supra note 25.

[95] See, e.g., Miss. Code Ann. § 93-17-215 (West 1999).

[96] See, e.g., Minn. Stat. Ann. § 259.89 (2003) (Providing that the agency search for the birth parents once an adult adoptee has initiated a request for release of adoption of records. The birth parents are give thirty days to reply to the agency with a request that the information not be released.)

[97] Like the states that employ a permission scheme, the disclosure veto system states are split on the issue of whether to release the information if a birth parent is deceased or cannot be located.

[98] Ala. Code § 22-9A-12 (Michie Supp. 2004); Alaska Stat. § 18.50.500 (LexisNexis 2004); Kan. Stat. Ann. § 59-2122 (1994); N.H. Rev. Stat. Ann. § 5-C:16 (2005); Or. Rev. Stat. Ann. § 432.240 (West 2003); Tenn. Code Ann. § 36-1-127 (2003).

[99] See, e.g., Tenn. Code Ann. § 36-1-127 (LexisNexis 2001).

[100] Ala. Code § 22-92A-12(d) (Michie Supp. 2004); N.H. Rev. Stat. Ann. § 5-C:16 (2005);Or. Rev. Stat. § 432.240(2) (West 2003); Tenn. Code Ann. § 36-1-128 (LexisNexis 2001). Tennessee also provides a blanket prohibition on disclosing the identities of birth mothers who were victims of rape or incest; absent written permission from those birth mothers, those adoption records are kept sealed.

[101] H. Keith Morrison and Patricia A. Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1, 32 (2000).

[102] See generally, Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 199), Does 1, 2, 3, 4, 5, 6, and 7 v. Oregon, 993 P.2d 822 (Or. 2000).

[103] BLACK’S LAW DICTIONARY 1221 (9th ed. 2009). Historically, children and persons with mental

or physical disabilities warranted state protection under parens patriae. See O’Connor v. Donaldson, 422 U.S. 563, 583 (1975) (‘The classic example of [the State’s pareas patriae] role is when a State undertakes to act as ‘the general guardian of all infants, idiots, and lunatics.”‘ (quoting Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972))).

[104] Moe v. Dinkins, 533 F. Supp. 623, 629 (S.D.N.Y. 1981), affd, 669 F.2d 67 (2d Cir. 1982); see

also Schall v. Martin, 467 U.S. 253, 265 (1984) (“Children, by definition,are not assumed to have the capacity to take care of themselves.”); Ruth Arlene W. Howe, Race Matters in Adoption, 42 FAM. L.Q. 465, 467 n. 10 (2008) (noting that in the United States, parens patriae refers to the State’s role as protector of the interests of children).

[105] James G. Dwyer, The Child Protection Pretense: States’ Continued Consignment of Newborn Babies to Unfit Parents, 93 MINN. L. REV. 407, 412 (2008)

[106] Id.

[107] Preventive health services for adults, (accessed Mar. 3, 2015).

[108] Preventive health services for women, (accessed Mar. 3, 2015).

[109] Tenn. Code Ann. § 36-1-127(a).

[110] Id. at § 36-1-127(c)(1)(A)(i).

[111] Id.

[112] Id. at § 36-1-127(c)(1)(C).

[113] Id. at § 36-1-127(h)(1)-(3).

[114] Id. at § 36-1-127(c)(3).

[115] Id. at § 36-1-127(c)(4)(D).

[116] See generally, Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 199), Does 1, 2, 3, 4, 5, 6, and 7 v. Oregon, 993 P.2d 822 (Or. 2000).

[117] Tenn. Code Ann. § 36-1-27

[118] Doe v. Sundquist, 2 S. W.3d 919, 920-21 (Tenn. 1999).

[119] Id. at 919.

[120] Mary O’Leary Wiley & Amanda L. Baden, Birth Parents in Adoption: Research, Practice, and Counseling Psychology, 33 The Counseling Psychologist 13, 42 (Jan. 2005).

[121] Supra note 116, at 926.

[122] Does 1, 2, 3, 4, 5, 6, and 7 v. Oregon, 993 P.2d 822, 826 (Or. 2000).

[123] Id. at 835.

[124] Id. at 836.

[125] Id. at 835-836.

[126] Tenn. Code Ann. § 36-1-127(e)(2).

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