The State's Interest in Adoption and Washington's Sealed Records Policy

• Jurisdiction: Washington,United States
• Citation: Vol. 4 No. 03
• Publication year: 1981

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 4, No.2SPRING 1981

COMMENTS

The State's Interest in Adoption and Washington's Sealed Records Policy

Eileen M. Lawrence

Increasing demand among adopted children to obtain access to their adoption records(fn1) has precipitated several constitutional challenges to the state sealed records statutes. Although a minority of states currently allow adult(fn2) adoptees to inspect their original birth certificates and court records, the majority of states, including Washington, have a sealed records policy preventing access to such information unless the adoptee shows good cause(fn3) for their release.(fn4) In challenging the constitutionality of such statutes, adoptees argue that the state's refusal to disclose such records violates their constitutional right to privacy,(fn5) first amendment rights of access to information,(fn6) equal protection of the laws,(fn7) and rights under the thirteenth or ninth amendment.(fn8) Nevertheless, courts upholding the constitutionality of the sealed records statutes typically conclude that the state's interest in the adoption process and the privacy interests of the natural and adoptive parents outweigh the adoptees' rights to the information.(fn9)

Washington's adoption statute protects not only the adoptee, but all participants in the adoption process.(fn10) Requiring the adoptee to show "good cause" prior to releasing adoption information protects non-adoptee participants. Although there is no legislative definition(fn11) of good cause, the Washington Court of Appeals requires a judicial balancing of conflicting interests prior to granting the adoptee identifying information.(fn12) Because the adoption process involves balancing several potentially conflicting interests,(fn13) the adoptee's right to access cannot be absolute. Although the current statute appropriately protects the conflicting interests, the sealed records policy may need precise tailoring to accommodate adoptees' interests, such as providing nonidentifying information regarding the adoptee's biological heritage.(fn14) Nevertheless, the statute requires judicial balancing of competing interests and because the good cause determination provides for such balancing, it is the best method of protecting the varied constitutional and statutory rights involved in the adoption process.

After discussing the legal effect of the adoption decree and the purpose of Washington's adoption statute, this comment will analyze the competing interests of the adoptee, the biological parents, the adoptive parents, and the state. This article will also discuss the legislative proposal in Washington attempting to abolish the good cause requirement. Finally, this article concludes the sealed records requirement is constitutionally sound and despite the need for further legislative articulation, the good cause balancing approach is the most suitable method for protecting the conflicting rights and interests inherent in the adoption process.

In Washington, as in most states, an adoption decree divests the natural parents of "all legal rights and obligations in respect to the child."(fn15) Concomitantly, the child relinquishes all legal rights and is relieved of all obligations of "obedience and maintenance"(fn16) to the biological parents. The adopted child becomes the legal heir of the adopting parent, entitling him(fn17) to all rights and privileges, including inheritance.(fn18) The biological parent retains only the right to privacy, a right protected by the entire structure of the adoption statute.(fn19) The Washington legislature, in seeking to protect the rights of adopted children, adoptive parents, biological parents, and the state,(fn20) enacted a sealed records statute providing: "Unless otherwise requested by the adoptee,(fn21) all records of any proceeding hereunder shall be sealed and shall not be thereafter open to inspection by any person except upon order of the court for good cause shown; and thereafter shall be again sealed as before."(fn22) Thus, this statute effectively bars the adoptee's access to information regarding his original birth certificate,(fn23) court records concerning the adoption decree,(fn24) and agency records identifying the adoptee's biological parents,(fn25) unless the adoptee can demonstrate good cause. The courts, however, have defined good cause narrowly(fn26) and adoption agencies tend to be equally stringent.(fn27) Because of the extreme difficulty of showing good cause, adoptees have sought access to their adoption records by challenging the constitutionality of sealed records statutes.

Recently, adoptees have argued that sealed record statutes unconstitutionally impair adoptees' privacy rights to personal autonomy, infringe on their first amendment right of access to information and deny adoptees equal protection under the law. Perhaps the most significant judicial directive on the sealed records controversy was articulated in ALMA Society v. Mellon, (fn28)where plaintiffs challenged the constitutionality of the New York sealed records statute, arguing that access to adoption records should not require any showing of good cause whatsoever. Plaintiffs attacked the statute on three grounds. First, they claimed the adoptees' interest in learning their natural parents' identity is a fundamental right under due process, privacy analysis,(fn29) because lack of access can result in serious psychological trauma, medical misdiagnosis for lack of medical history, a danger of unwitting incest, and a crisis in religious identity constituting an impairment of religious freedom.(fn30) Second, they argued that adult adoptees constitute a suspect or "quasi-suspect" class, requiring a strict or intermediate level scrutiny, respectively.(fn31) Finally, they urged the court to apply thirteenth amendment analysis maintaining that the sealing of adoption records constitutes the second incident of slavery(fn32) in violation of absolute thirteenth amendment rights.(fn33) In Mills v. Atlantic City Department of Vital Statistics(fn34) and Matter of Roger B.,(fn35) the plaintiffs contended the sealed records law abridged their constitutionally protected right to privacy and their first amendment right to receive important information. As in Mellon, they argued the state also violated the fourteenth amendment by denying adoptees equal protection of the laws.(fn36) The Washington decision of In Re Sage(fn37) also involving an equal protection challenge to the sealed records law, was Washington's first recorded challenge to the sealed records policy. The adoptee in Sage sought disclosure under Washington's Public Disclosure law.(fn38) In upholding the constitutionality of the good cause requirement, all four courts recognized the varied interests adoption statutes protect,(fn39) thereby indicating that adoptees' rights are not absolute.(fn40) Although all four courts refused to apply strict scrutiny,(fn41) the Mellon and Mills courts held that even if the adoptees' interests could be classified as fundamental or adoptees treated as a suspect class, the state's interest in the adoption process is compelling(fn42) and, thus, the sealed records statutes did not violate adoptees' asserted constitutional claims.

In arguing their constitutional privacy rights are violated, rights that have been judicially recognized as implicit within constitutional protections,(fn43) adoptees assert that adoption information retained by the state falls within certain "zones" of privacy. Members of the Supreme Court have implicated this privacy interest in activities related to: marriage,(fn44) procreation,(fn45) contraception,(fn46) child rearing(fn47) and education.(fn48) The Court in Whalen v. Roe,(fn49) hinted that an informational due process privacy right exists,(fn50) encompassing an individual's interest in avoiding the disclosure of personal matters.(fn51) Adoptees' strongest argument combines the goal of informational privacy with the liberty concept of the fourteenth amendment.(fn52) First, because informational privacy involves the right of personal automony, the state's retention of information regarding biological heritage is said to infringe on the adoptee's right of "per-sonhood."(fn53) Second, withholding adoption information from adoptees violates their liberty rights under the fourteenth amendment by inhibiting the adoptees' growth in mind, spirit, and personal development.(fn54) Although similar, the first argument essentially relates to the state's data-gathering activities and information dissemination to persons other than the adoptee in violation of due process privacy rights; the second criticizes the state's refusal to disclose the information to the adoptee as violating the liberty concept encompassed in the fourteenth amendment. To prevail under either argument, the court must deem the alleged right to be fundamental in nature(fn55) so as to be found within the protected zones of privacy recognized by the Supreme Court.(fn56)

The interest must be found within the wording of the Constitution(fn57) to be classified as fundamental and therefore constitutionally protected. Courts have not explicitly found an adoptee's right to information in the Constitution itself, nor within the 'zones' of privacy previously recognized.(fn58) It is doubtful adoptees could successfully argue their interest comes within the previously recognized privacy interest in family...