Oregon and Tennessee laws give access to birth records, but confidentiality previously was assured

Sunday, December 27 1998

A preview of the quickening battle over Oregon's adoption records might start with Tracey Peck, a 32-year-old Tennessee resident who remembers walking into a downtown Nashville office and spotting the subject of her search.

It was an old accordion-type file, lumpy and bundled by string around a button.

That file held her past: Her own name at birth. Her birth mother's long-secret name. And how Peck came to be adopted.

"I was looking at something I had never dreamed I'd have the opportunity to look at," Peck said.

Then the door slammed shut again.

A judge had placed the law on hold. There it remains. That was nearly two years ago.

Just like the court-ordered hold placed Dec. 1 on Oregon's law -- approved by voters as Measure 58 -- that opens original birth certificates to adult adoptees, Tennessee's law remains sidelined while parties joust in court.

As such, Tennessee has a lesson for Oregon: Both sides have the willpower and means to carry on an extended wrangle.

And that happens amid the sense for some adoptees that the clock is ticking.

"At my age," said Oregon's Mary Inselman, 77, a Sweet Home adoptee, "who knows where I'll be in two or three months?"

Adoptee Jonathan Wexler, 40, a domestic law clerk in Portland, said: "Part of what an adoptee feels is a time constraint. Every day, every month that a delay occurs, the people that can give us the answers we seek are dying or moving away."

Both sides agree that more openness is preferable. The hitch is the issue of retroactivity: Tennessee's and Oregon's new laws would suddenly open a birth record to adult adoptees who were born during recent decades when laws have kept their birth parents' names confidential.

As a result, two separate groups of anonymous birth mothers argue in both states that the laws shatter their expectations of privacy.

The Tennessee suit is the reason that only Peck and six other Tennessee adoptees -- of 2,000 applicants -- have had a chance to view their long-secret files. The Tennessee Legislature's law was supposed to go into effect July 1, 1996. But injunctions have kept adoptees away for all but a scattering of 18 days between court-ordered stays. Six of the seven adoptees who saw their files remain prohibited from contacting birth parents named in those files unless the court lifts the hold and those parents also give their permission.

Tennessee's hard road is not necessarily Oregon's, which would provide only the original birth certificate -- not essentially the full file as in Tennessee. But students of strings and levers note links between some players: The National Council for Adoption, a private group that provided statements from birth mothers challenging the case in Tennessee, also found Portland lawyer Franklin Hunsaker to represent birth mothers who wanted to block Oregon's law.

On the issue's other side, New York lawyer Frederick F. Greenman, who has advised Nashville lawyers defending the Tennessee law, also helps advise Portland lawyer Thomas E. McDermott in his representation of Measure 58 supporters.

These struggles about confidentiality occur during a national dance toward mostly open adoptions -- unions in which everyone can choose to stay in touch.

But even though nearly two-thirds of Oregon adoptions last year were open, Oregon and Tennessee laws have slammed into courtroom blockades because of those laws' retroactive natures. It took decades of twists to bring it to this point.

Flash point: retroactivity

In 1996, after years of efforts from advocates, the Tennessee Legislature passed a law saying adult adoptees could have access to almost their entire adoption file with certain limitations: The state would need to try to reach the birth parents of each adoptee applicant to give the birth parents a chance to say yes or no to contact.

Part of the law went into effect without challenge, and that is the part that enables applicants adopted before 1951 to obtain their files. It was the retroactive piece for post-1951 adoptees that drew a lawsuit.

Challengers include Small World Ministries Inc., a nonprofit Tennessee adoption agency; three birth parents using the pseudonyms of Promise Doe, Jane Roe and Brenda Doe; and an adoptive couple who also wish to keep their privacy.

Filed in 1996, the lawsuit's first chapter ended when the 6th U.S. Court of Appeals found no constitutional right to keep the information from adoptees. The U.S. Supreme Court refused the opponents' request to review the case, and that ended the federal-level challenges.

The law's opponents took it to Tennessee state court, which ruled the law was constitutional under the state constitution. Opponents then went to the Tennessee Court of Appeals, and that brought the turnaround: In August, the Appeals Court reversed the trial court.

While the law remains on hold, parties wait for the Tennessee Supreme Court to say whether it will hear an appeal.

Enough pain for everyone

One of Oregon's seven suing birth mothers states that her father raped her in 1975. She became pregnant and relinquished the baby for adoption. She says that contact from the child through Oregon's new law might reopen a traumatic chapter in her life.

In Tennessee, an anonymous birth mother in her late 50s said she became pregnant at age 17, contracted the German measles, was told her baby probably would not survive, placed the baby for adoption and heard the baby had died. Thirty-two years later, in 1988, the state sent her a letter saying a young man was seeking identifying information to confirm that she was his mother. Shocked and despairing, she eventually declined the request. But she was jolted again in 1996: Tennessee's new adoption law, she heard, would open files to adult adoptees.

"For me," she said in a court statement, "this has become a nightmare that will never go away."

Sorrows touch the other side, too. Tennessee adoptee Charles Raymond Lokey said in a sworn statement to the court that his older brother died last year at age 45 of a massive heart attack.

"Had my brother and I had access to our adoption records and an opportunity to contact our birth parents and learn our family medical histories," Lokey said, "my brother might have been less likely to disregard his pains, and he might be alive today."

The laws' challengers argue that state registries already enable most adoptees to receive nonidentifying medical information about their birth parents. The laws' supporters counter that it comes down to the principle of an adoptee being able to see a piece of paper that everyone else can see.

Although some critics predict traumatic encounters if adoptees find their birth parents, vital-records officials say that has not been the case in Kansas and Alaska, the only two states that have kept their records open to adult adoptees in recent decades. In those two states, parents relinquish children with the knowledge that those records will be open.

"It's not because we're such a forward state; it's because we just never closed them," Rochelle Harris, head of Wichita Adult Adoptees, said of the Kansas records. "There aren't any big lawsuits going on. People aren't throwing themselves off bridges. You just have to stay calm about things. People just get worried about the unknown."

The search for answers

"I got to the point," Dunton said, "of where I'd say to myself: 'That's my information to have. That's not some clerk's.' "

Dunton and other Measure 58 supporters try to frame the issue not as about the search but as a civil right. Tracey Peck, the Tennessee adoptee who saw her files, said she did not plan to look for her mother because she had heard in 1991 that her mother did not want to meet her.

Peck said she had come to terms with those wishes. She added that her adoption file had probably given her all she deeply wanted to know: Who she is and where she is from.

"The reasons adoptees search are as numerous as the numbers of adoptees themselves," said Peck, who serves as education coordinator for Tennessee's Department of Economic and Community Development. "I started this process to have my questions answered."

Debbie M. Norton, 46, a Memphis bank compliance officer and another one of the Tennessee seven who reached their records, said she previously had conducted her own search and found her mother long before -- in 1981.

As courtroom battles proceed with sorrows on each side, Norton recalls the backyard cookout to which she invited her adoptive mother and birth mother.

She said she wanted them to meet, and that day something happened.

"My birth mother said to my adoptive mom, 'If I would have chosen someone for her to be with, it would have been you.' "

Last month, Norton's birth mother died. She says she was glad to have been there in time.

"You can have two mothers," she said, "and have a place in the heart for both of them."

Copyright 1998, Oregon Live ®