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Pennsylvania Pages

HB 2658
The Facts

This fact sheet will shed light on the constitutional implications of HB 2568 and the misguided assumptions this bill is based on. Steven Drahazol, a private attorney who specializes in constitutional law, has reviewed this bill. He has also contributed to this writing.

We have chosen the following sections of the bill to show you it’s inherent faults and explain why these sections are unconstitutional and, in some cases, dangerous infringements on the rights of individuals.

Section 5: Outlaws disclosure of information regarding birth parents to an adoptee.

· This section is a clear violation of free speech because it outlaws communication between a parent and child pertaining to vital issues about the child. If the adoptive parents have important information about the birth parents, it would be illegal for them to share it with their child, the adoptee. How can a government over-stepping personal boundaries and interfere in the personal lives and personal communication of its citizens? This is a gross and dangerous restriction of personal freedom where there is absolutely no threat to the security of the Commonwealth of Pennsylvania or the United States. It is not the government’s job to regulate extremely personal information and communication regarding a citizen that the said citizen, who is an ADULT, does not have access to himself or herself.

· It is also unconstitutional per the Fourteenth Amendment of the U.S. Constitution to make a law that infringes on the privileges and immunities of a select group. Any other citizen of the Commonwealth of Pennsylvania is entitled to their original birth certificate, contact with their biological parents and are immune to governmental control of their communications with their biological parents. Adoptees are not afforded these privileges and immunities but are subject to government control of their personal information. No other adult in Pennsylvania suffers the injustice and invasion of privacy.

Section 6: A clear restraint on the receipt of information.

· The United States Supreme Court has ruled that the receipt of information is part of the right to free speech guaranteed in the First Amendment of the U.S. Constitution. Prior restraint, as this section alludes to, is the administrative or legal requirement that outlaws the speech or receipt of information before the speech or receipt occurs. Prior restraint is illegal unless it is very narrowly tailored to a state’s compelling interest. Receiving personal, vital information about one’s self in no way threatens the integrity or security of the Commonwealth of Pennsylvania or the United States. Therefore, it cannot be in the state’s compelling interest to withhold this information.

· The argument can be made that this section protects the birth parents’ privacy. From 1970 to 1984, Pennsylvania ALLOWED adult adoptees access to their original birth certificates and, therefore, identifying information regarding their birth parents. Privacy was certainly not granted during those 14 years. Also, the constitutional right to privacy only guarantees the right for individuals to conduct their personal business in the means that they see fit. It does not guarantee privacy of an individual from one’s biological children. Many courts, including the Tennessee State Supreme Court, Oregon Court of Appeal, and U.S. Federal District Court, have upheld this ruling. Also see Doe v. Sundquist, 106 F.3d at 705 citing J.P. v. DeSanti, 653 F2d 1080, 1090 (6th Cir. 1981). Birth parents have a legal remedy already at their disposal if they do not want contact with the adoptee, the restraining order. Let them choose to use it if they feel they must

· If birth parents right to privacy is the impetus for the section, then the government is assuming that this privacy is desired. This is a dangerous assumption. In a Harvard University study and a study completed in New Zealand, a country with open records, 80% of birth mothers wanted contact with the adoptee. There is also story after story told by birth mothers, on the Internet and in books, of the circumstances that dictated placing their child for adoption, their pain and depression from having to do it, and the psychological ramifications of possibly never knowing their biological child. From these accounts, you see one theme; birth mothers were usually not informed that their identities, by law, could not be revealed to their offspring.

Section 6(b): Does not allow access to the court system.

· This section would deny a citizen access to the court system and legal remedy. However, for a legislature to enact this type or provision, there must be a compelling state interest (Bounds v. Smith, 430 U.S. 817 (1977)). Vital personal information and adult communication regarding that personal information cannot be in the state’s compelling interest. Again, his information does not affect the integrity and security of the Commonwealth of Pennsylvania or the United States.

· It is a very dangerous precedent to target a law aimed at the specific group of citizens and then denying them access to fight it. This is akin to passing laws targeting a specific race, religion or gender, then not allowing them to sue to retain their civil rights. Most people would agree that this is morally and ethically the wrong thing to do when we live in a free society.

· It is the explicit job of the judiciary branch to interpret the constitutionality of a law when the case involving that law is brought before court.

Section 12: Makes provisions for a bad system, the Confidential Intermediary, or CI.

· CI systems do not work because they are not publicized and under staffed. So, who should pay to publicize and staff this system? The adoptee shouldn’t because other individual has to pay money to ask his or her birth parents a question. The taxpayers shouldn’t be saddled with this burden either; it’s not in their best interest to have their money used for this purpose.

· The significant problem with a CI is that this system still denies the adult adoptee access to their personal, vital information and treats adoptees as if they are incapable of making their own decisions regarding adult contact. This is the best example of government interference in a citizen’s private matters. Who is in the best position to make decisions about their personal lives, the affected person or the government? No other adult population in the Commonwealth of Pennsylvania suffers this blatant government intrusion into their personal lives.

Section 19: The state must get permission to look at the files of private adoption agencies.

· This clause is a blatant attempt to satisfy large special interests groups. If the government is going to interfere in this very personal matter in any form, it should subject private adoption agencies to its regulations. It doesn’t make sense to give or deny information to the same group citizens based on where or how they were adopted. These said individuals also had no say in choosing what type of adoption they should have so all should be treated equally.

Medical implications of withholding information: Not addressed.

· There have been incredible advances in the field of genetics over the past decade. We are now at the point where we can map a human genome. However, most adult adoptees have no medical history at all and no way of obtaining it because their vital information is withheld from them by the state. This not only affects the adopted person but their biological children and grandchildren. Who bears responsibility for criminal negligence if withholding vital personal information causes a genetic medical condition to go unrecognized or the death of an affected person? All fingers point to the Commonwealth of Pennsylvania for sealing these records.

· Provisions have been made for a state-run Medical History Registry. However, like the CI system, it is understaffed and not publicized. In response to an inquiry regarding what was being done to publicize the system, (name) blamed the county courts, which keep the adoption records, for not contacting birth parents regarding the registry. It also STILL denies adoptees the right to their personal, private information and the right to do with it as they see fit. This is a complete waste of taxpayer money.

Language of the Bill: Offensive and demeaning.

· The language of this bill portrays adoptees that seek access to their own, personal records as abnormal. According to many psychologists, all adoptees go through a search, at least mentally but not all actively search for their birth parents (Being Adopted: The Lifelong Search for Self (1992), by David M. Brodzinsky, et. Al., page 79). It is not abnormal for any person to wonder about their roots. This is evident in the study of archaeology, the number of genealogical websites that have developed to assist in tracing one’s family tree, and the nature of Americans to keep the traditions of their ancestors alive, particularly around holidays. Why should adoptees be any different in wondering about their roots or who they were before they became a member of their adoptive family?

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