Strange Bedfellows (and Pillow Talk) in Trenton

Happy 50th Birthday, ACLU-NJ. – promoted by Rosi Efthim

Monday was another weird one in Trenton.

It’s unusual for the ACLU to testify on the same side as groups like New Jersey Right to Life and New Jersey Coalition to Preserve and Protect Marriage. But on Monday, I had the exceptional experience of testifying alongside Marie Tasy and John Tomicki (of those respective organizations) on not just one bill, but two.

Disclosure or disaster? When censorship wears the disguise of transparency.

In an attempt to address the lack of transparency required of 501c4 organizations that run issue-advocacy ads during election season (think swift boat ads), A2595 goes too far by requiring 501 c4 and c3 organizations doing advocacy work unrelated to electoral politics to reveal their members’ private information. While the ACLU-NJ understands the importance of disclosure, if passed this bill would put a stranglehold on our free speech and association rights, and create administrative nightmares for already overburdened organizations.

For example, if the League of Women Voters spent more than $2,100 to provide information in a non-partisan effort to educate voters, under A2595 it would have to disclose names and other information about any donor to the organization who gives over $300. This is true even if the League provided information simply listing the candidates in each district or describing the public questions on the ballot.

Likewise, if the American Cancer Society or Muscular Dystrophy Association wanted to give an award at their annual gala to a legislator for his or her work in their area of interest, and the organization spent over $2,100 in printing programs and invitations containing information relating to the legislator’s accomplishments, that organization would have to disclose the names and personal information of any donors giving over $300.

The ACLU-NJ and NJ Right to Life, as well as other non-partisan, issue-oriented organizations across the spectrum, lined up to speak out against this bill. Even the New Jersey Election Law Enforcement Commission (ELEC) objected to including 501c3 and c4 organizations in the bill. Assembly Judiciary Chair and primary sponsor of A2595 Assemblywoman Linda Greenstein decided to take the bill back to the drawing board.

‘Adopting’ Broad Coalitions in the Fight for Birth Parents’ Privacy

After the hearing on the disclosure bill had finished, our motley crew of advocates headed over to the Assembly Human Services Committee for part two of strange bedfellows at the State House. This time, the issue was the privacy rights of birth parents who wish to maintain the confidentiality state law has protected for decades.

For at least 50 years, New Jersey law has required that adoption records be sealed. Currently, anyone seeking adoption records must meet the courts’ “good cause” standard to get access (which generally requires a pressing medical need).  

Impassioned adult adoptees have formed a lobby to gain access to their original birth certificates, which include the names of their birth parents. The adoptees worked with Senator Joe Vitale to develop a hot messy sausage called S799/A1406, which would open the records so that adult adoptees who requested them could receive their original birth certificates and their birth parents’ names (see bullet points on problems with the bill below).

While we are sympathetic to the adult adoptees, the privacy rights of birth mothers who do not wish to have their names revealed must also carry weight.

I have received a number of anonymous letters from women explaining their situations and thanking us for our work on this issue. Several who wrote became pregnant through rape, incest and trauma, and they fear having those parts of their pasts suddenly resurrected by an unexpected knock on the door.

Follow to the jump for more.

Our legislators find it difficult to understand the position of these birth parents, because they’re invisible. Testifying publicly before the legislatures in Trenton pierces the very privacy they want so much to preserve. An unwanted intrusion from a birth child could significantly disrupt a mother’s life, or even endanger it. In our region, several cases in recent years have demonstrated how terribly wrong things can go when a birth parent’s information is released without consent.

The legislature can and should pursue alternative options to facilitate desired reunions, balancing the rights of everyone involved. For example, the state could create a “search and consent” system that deployed trained intermediaries to initiate contact, letting the birth parents decide for themselves if they’re open to a reunion instead of releasing their personal information with minimal notice.

Birth parents should be able to choose whether to keep their identities confidential or allow them to be known when they place children for adoption. That choice delves into personal questions concerning someone’s marriage, family life, identity, and feelings about reproduction and children, which the right to privacy under the United States and New Jersey constitutions protects.

Crucially, the right to privacy extends to medical histories. While most birth parents will gladly provide medical information to benefit their children, it’s both unethical and impractical to force people to disclose personal medical information.

Our coalition on this issue – the ACLU-NJ, NJ Right to Life, Catholic Conference, the Bar Association and the National Council for Adoption – comes to the table with different perspectives and concerns about this bill. The great news is that working with these diverse advocates has been an overwhelmingly positive and collegial experience, despite our differences on other issues. The good news – as well as the bad news, too – is that all of these advocates do their jobs very well, which isn’t fun when we’re adversaries.

The issues involved with S799/A1406 are complicated, and people’s feelings about it depend a lot on personal experience – it doesn’t go down party lines and it doesn’t go down adopted/not adopted lines. It’s an issue that presents competing rights, and we must find a middle ground that respects the concerns of everyone with something at stake.

I would like to see a compromise struck on this issue for many reasons – both sides are weary of the fight, and for the adult adoptees, there is a tremendous personal stake. But we will not give up on the rights of the women who made the choice to carry an unwanted or untimely pregnancy to term, place a child for adoption, and maintain personal confidentiality.

The bill passed the Assembly Human Services Committee, as expected, after about five hours of testimony. All of the Democrats voted in favor, while all of the Republicans abstained. We have proposed the aforementioned “search and consent” model as a compromise in the hopes that some of the legislators will see all sides of the issue and pursue a real solution before this incredibly flawed law passes.

Problems with S799/A1406

For past adoptions: The rights of women who placed children for adoption are disregarded.  

• S799/A1406 opens sealed adoption records one year after the enactment of the law unless birth parents contact the state to indicate that they do not want contact.

• Most birth parents won’t know that their rights to privacy are on the line. The bill provides no budget appropriation to notify the birth parents who have since scattered around the country and world. Most will lose their right to privacy without ever hearing about the law.

• Those who do follow the steps to maintain their privacy after finding out about the law will be required to submit a medical history form, and then to resubmit it every five or ten years (depending on the parent’s age) thereafter. If they fail to provide this information, their identifying information will be released against their wishes.  

• Requiring people to disclose personal medical information violates fundamental privacy rights found in laws like the Health Insurance Portability and Accountability Act (HIPAA), a federal law passed in 1996 securing individual medical rights.

For prospective adoptions: Privacy is not an option once the law is enacted.

• The contact preference form is just that: a preference. A birth parent may submit a form to the state indicating whether they want to be contacted, but if the birth parent chooses the option that says “I would prefer not to be contacted at this time,” it is not binding. The adopted person could still receive the long-form copy of the birth certificate, which contains all identifying information.    

Comment (1)

  1. Thurman Hart

    I barely knew my father. My folks split up when I was a baby and he only visited a few times (he was in the military) before he died of heart failure at 43. But I do know his extended family and can give a complete family medical history going back at least three generations.

    My two oldest children are adopted. They both know who their biological mother is, but their father(s) identity is a bit of a mystery. Unfortunately, when they give their medical histories, they can only go as far back as the state foster care records go. They aren’t even able to verify that their delivery was normal and without undue complications. There is absolutely no way to tell if there is a bio-family disposition towards heart disease, diabetes, depression, arthritis, or anything else.

    Whereas I know, without a doubt, that I have to monitor my heart health, my children will not have such knowledge until it is too late. After a first heart attack is a bit too late to build a family history.

    I also have friend who recently faced a hysterectomy because of a series of non-cancerous cysts in her uterus. Her doctors believe that being susceptible to these growths (I don’t think I’m saying that right, so I ask that everyone read for meaning) is linked to her genetic code. But, since she was adopted, she had no idea that she should probably start having ultrasounds of her uterus at age 30. Fortunately, it was not a life-threatening issue, but trying to find a doctor that would simply remove the tumors rather than rip out her entire uterus was pretty traumatic. It is possible – though not a foregone conclusion – that much, if not all, of the suffering could have been avoided with a detailed family medical history.

    I contrast the situations because I don’t think we have any inherent right to know our parents. But we, perhaps, can say that we have a right to know who our parents are. Until genetic screening renders such issues moot, adopted children will always be at a medical disadvantage.

    However, I fear that tearing away the veil of privacy might force some women away from considering adoption as an option. As an advocate of “choice” I have to support the choice to bear a child for adoption as much as to keep a child or to have an abortion.

    As I say, there has to be some sort of compromise. I’m just not smart enough to figure out where exactly it should fall. I’ve pretty much kept quiet on this issue because I’m just not sure what the best solution is. I’m not even sure which direction would be moving towards a better solution.


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