IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
PROMISE DOE, JANE ROE, KIMBERLY C.
and RUSS C., and
SMALL WORLD MINISTRIES, INC.,
DONALD SUNDQUIST, Governor of
the State of Tennessee, in his
official capacity; JOHN KNOX WALKUP,
Attorney General of the State of Tennessee,
in his official capacity; and GEORGE HATTAWAY,
in his official capacity as the
Commissioner of the Department of Human Services
for the State of Tennessee,
ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT
FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE
BRIEF OF AMICI CURIAE
TERESA EVETTS HORTON, et al.
Of Counsel: HARLAN DODSON III, #2368
Frederick F. Greenman, FG 4392 ANNE C. MARTIN, #15536
DEUTSCH KLAGSBRUN & BLASBAND JULIE K. SANDINE, #15880
800 3rd Avenue DODSON, PARKER & BEHM
New York, New York 10022-7604 306 Gay Street
(212) 758-1100 Suite 400
P.O. Box 198066
Nashville, TN 37219
ROBERT D. TUKE, #4650
TUKE YOPP & SWEENEY
Suite 1100, NationsBank Plaza
414 Union Street
Nashville, TN 37219
This brief is sumitted on behalf of the following Amici Curiae:
Teresa Evetts Horton Charlotte West Sara Elmore
Kay Garrett Bobby W. Atkins Kari Tegethoff
Elaine G. Sabra Diana Gail Atkins Jody Tegethoff
Vickie Mills Thomas Swain Annamarie Rose
Cheryl B. Hagler Bonnie Dudley Ross
Rosemary James Thomas D. Beckwith David Michael
Laura C. Ingram J. Camille Beckwith Swain
Kathleen F. Baroni Jan Adkins Allison Brown
Debbie Collins Gordon Adkins Charlisa L. Cato
Betty Sarvis Marie Hill Paige Yank
Diane Edwards Robert Adkisson Kay Gardner
Nancy Lynn Acree Catherine Adams Mary Malissa
Donna Asta Daryl Adams Thompson Doerr
Sandra Joy Long James Thompson James B. Hill
Debra Brawner Minga Kathleen Thompson Charles Raymond
Bonnie Blackwell Valerie Goodman Lokey
Lee N. Jones Mary Elizabeth Clark Margaret
Pennie Sue Fickling Brent Rogers Hill-Callahan
Jennifer Anderson Phillip R. Brackett Sandra Kay Hodge
Barbara Simpson Karen Cardosi Perry Lynn Bond
Martha Vandergrift Janette White Cynthia
Anne Monteith Tracey Peck Ruhstaller
Harriet Elaine Jordan Wanda Roberts Amy Nowlin
Starr Ramsey Frank Splann III Julie Buchanan
Jacqueline Anne Sharon Mauk Christina Maria
Letellier Debra Duckett Coble
Janice Akers Regina Parham Leslie Jean Lyles
Shirley C. Patterson Kristi Dodson Rheeta Anne
Paulette Fennello Brenda Kaye Brewster Boutin
James Friery Matthew McMurray Kevin Bosworth
Robin Hicks Deborah Sharon Norton Sanders
Linda Antonik Julee Spangler Chad Austin
Debra Lampley Holly West
Barbara Stuart Derek Lind
Jo Anne Butts Sherry Griffith
Rebecca King Leslie Swift
Cheryl Oliver Rachel Marie Lilly
Shumate Amy Crawford
Sarah Grace Connell
Robert D. Tuke, who was a member of the Adoption Study Commission, State of Tennessee, was also granted Amicus Curiae status by the Trial Court. Mr. Tuke joins in this Brief with the other Amici Curiae.
TABLE OF CONTENTS
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES vi
ISSUES PRESENTED FOR REVIEW 1
HISTORY OF THE LITIGATION 2
INTEREST OF AMICI 6
SUMMARY OF ARGUMENT 27
I. IN DISMISSING PLAINTIFFS' COMPLAINT, THE TRIAL COURT PROPERLY APPLIED THE STANDARD REQUIRED FOR A MOTION TO DISMISS. 33
A. THE TRIAL COURT APPLIED THE PROPER STANDARD. 33
B. LEGISLATIVE AND STATUTORY INFORMATION MAY
BE CONSIDERED. 35
C. PLAINTIFFS' SUIT COULD ALSO BE DISMISSED ON SUMMARY JUDGMENT. 38
II. THE AMENDED LAW DOES NOT IMPAIR ANY VESTED RIGHT OR CONTRACTUAL OBLIGATION, BECAUSE PRIOR LAW DID NOT CREATE ANY VESTED RIGHT OR REASONABLE EXPECTATION THAT BIRTH PARENTS' IDENTITIES WOULD BE KEPT SECRET FROM THEIR CHILDREN. 38
A. THERE IS NO RIGHT TO ASSUME A LAW WILL NOT BE AMENDED. 39
B. PLAINTIFFS' CLAIM IS CONTRARY TO THE EXPRESS PURPOSES OF TENNESSEE'S ADOPTION STATUTE. 40
C. THE PRIOR LAW NEVER PROMISED ABSOLUTE CONFIDENTIALITY FROM ADOPTEES. 41
D. THE TRIAL COURT CORRECTLY FOUND THAT NO
VESTED RIGHT WAS IMPAIRED. 44
III. RELEASE OF FACTUAL INFORMATION PURSUANT TO THE AMENDED LAW DOES NOT VIOLATE THE RIGHT TO PRIVACY. 46
A. THE AMENDED LAW DOES NOT ADVERSELY AFFECT
ANY FAMILIAL RIGHT TO PRIVACY. 48
B. THE AMENDED LAW PROVIDES GREATER PROTECTIONS THAN WERE PREVIOUSLY ENJOYED. 49
C. THE AMENDED LAW DOES NOT ADVERSELY AFFECT ANY RIGHT TO REPRODUCTIVE PRIVACY. 51
D. THE AMENDED LAW PROMOTES ADOPTION. 52
1. Most Birth Parents Want Accessible
2. Statistics Demonstrate That Adoption
Rates Are Higher When Records Are
More Accessible. 53
3. Statistics Demonstrate That Abortion
Rates Are Lower When Records Are
More Accessible. 54
4. Current Experience Demonstrates That The
Rationale Relied Upon By Plaintiffs Has
No Basis In Fact. 56
IV. ANY CONFIDENTIALITY RIGHTS ASSERTED BY PLAINTIFFS
ARE NOT PROTECTED BY THE TENNESSEE CONSTITUTION. 58
A. THE AMENDED LAW LIMITS BOTH CONTENT AND DISCLOSURE OF ADOPTION INFORMATION. 58
B. PLAINTIFFS’ THEORY THREATENS THE LEGITIMACY OF PATERNITY LAWS. 60
V. THE BALANCE OF HARDSHIPS AND THE PUBLIC INTEREST ALSO FAVORS DENIAL OF INJUNCTIVE RELIEF. 61
A. THE DENIAL OF INJUNCTIVE RELIEF DOES NOT
RESULT IN LOSS OF ANY RECOGNIZED RIGHTS
WHICH MAY NEVER BE RECAPTURED. 61
B. A FURTHER STAY WILL RESULT IN SIGNIFICANT
HARM TO THE AMICI AND MANY OTHERS. 64
C. THE TRIAL COURT WAS CORRECT IN DENYING
PLAINTIFFS’ REQUEST FOR FURTHER INJUNCTIVE
RELIEF BECAUSE THE AMENDED LAW SERVES THE
PUBLIC INTEREST. 69
TABLE OF AUTHORITIES
Advisory Committee's Note, Amendments to the
Federal Rules of Evidence, 56 F.R.D. 183 (1972) 41
ISSUES PRESENTED FOR REVIEW
I. WHETHER THE TRIAL COURT PROPERLY APPLIED THE STANDARD FOR DISMISSAL OF A COMPLAINT PURSUANT TO A MOTION TO DISMISS.
II. WHETHER THE TRIAL COURT WAS CORRECT IN DECIDING THAT THE AMENDED LAW DOES NOT VIOLATE THE CONSTITUTITIONAL PROHIBITION AGAINST RETROSPECTIVE LEGISLATION.
III. WHETHER THE TRIAL COURT WAS CORRECT IN DECIDING THAT THE AMENDED LAW DOES NOT VIOLATE THE CONSTITUTITIONAL RIGHT TO PRIVACY.
IV. WHETHER THE TRIAL COURT WAS CORRECT IN DECIDING THAT THE BALANCE OF HARDSHIPS AND THE PUBLIC INTEREST ALSO FAVOR DENIAL OF INJUNCTIVE RELIEF.
HISTORY OF THE LITIGATION
This is the second of two suits brought by Plaintiffs Promise Doe et al. to enjoin the operation of the subsection of the newly enacted amendments to Tennessee’s adoption law, T.C.A. § 36-1-127(c) ("the Amended Law"), which change the procedure by which post-1951 adoptees can obtain access to some of their adoption records. The first suit was brought in the United States District Court for the Middle District of Tennessee on June 24, 1996, six days before the Amended Law was to go into effect. Plaintiffs alleged that the Amended Law violated the Constitutions of both the United States and Tennessee. The District Court initially granted a temporary restraining order against enforcement of the statute pending a hearing. On August 23, 1996, the District Court denied a preliminary injunction and dissolved the temporary restraining order. 943 F. Supp. 886. The United States Court of Appeals for the Sixth Circuit stayed enforcement of the statute pending Plaintiffs' expedited appeal.
On February 11, 1997, the Sixth Circuit affirmed the District Court and, sua sponte, ordered the complaint dismissed. 106 F.3d 702. The Court stated, "Plaintiffs’ ultimate chance of success on their federal claims is so slim as to be entirely ephemeral." The Court declined to rule on Plaintiffs’ state claims, stating that Plaintiffs "are entitled to what comfort they may obtain from Tennessee courts on the Tennessee claims." 106 F.3d at 706-07. The Court further stated:
We must observe also that the plaintiffs have always had the opportunity to present their state claims to the Tennessee courts, and if there is any danger of loss in their having failed earlier to pursue that avenue, the cause of it lies in their own hands. * * *
This case would have been better brought in state court in the first place¼ .
106 F.3d at 707-08. On October 6, 1997 the U. S. Supreme Court denied Plaintiffs’ petition for certiorari. 1997 WL 275289, 65 USLW 3783. After rendering its decision on the merits, the Sixth Circuit initially continued its stay pending Plaintiffs’ petition for certiorari, but on motion by Defendants and Amici for reconsideration, the stay was vacated on March 21, 1997. Only on March 26, 1997, did Plaintiffs finally begin this action in the Circuit Court in Davidson County. At the same time, they moved for a temporary restraining order and preliminary injunction. On March 27, 1997, the Trial Court issued a temporary restraining order enjoining enforcement of the Amended Law until Plaintiffs’ motion for a temporary injunction could be decided. On April 7, 1997, the Court granted amicus curiae status to the parties filing this Brief, who are 37 birth mothers, 15 adoptive parents and 46 adoptees in adoptions subject to the Amended Law. Robert Tuke, an attorney who served on the Adoption Commission, was granted amicus curiae status on April 10, 1997. The Trial Court heard oral argument on Plaintiffs’ application for a temporary injunction on April 10, 1997. The parties and Amici were requested to submit additional briefs to the Trial Court on the question of whether the Amended Law violated the Tennessee Constitution’s prohibition against retrospective legislation. The Trial Court denied Plaintiffs’ motion for a temporary injunction on May 2, 1997, but left in place the stay against enforcement of the Amended Law until May 9, 1997. The Trial Court held that "[a] birth parent has no constitutional right to non-disclosure of his or her identity," and that no vested right was violated because "[a]ny reliance upon permanent and absolute confidentiality would have been misplaced." (Mem. and Opin. at 16, 28). The Trial Court concluded, "The Plaintiffs have failed to demonstrate a substantial likelihood of prevailing on the merits at a final hearing." (Mem. and Opin. at 28). Plaintiffs then filed a motion with this Court, on May 8, 1997, requesting an extraordinary appeal and a stay in enforcement of the statute pending appeal. On May 9, 1997, this Court entered an Order granting the Rule 7 request for stay. On June 12, 1997, this Court continued the stay "pending an adjudication of the constitutionality of the act in respect to all citizens." The Court ordered that the disposition of the interlocutory appeal should be reserved pending a final order from the Trial Court disposing of the remaining issues in the case. This Court further ordered that any appeal from such final order be merged with the interlocutory appeal. This Court further granted these Amici Curiae leave to file briefs and to participate in oral argument, subject to agreement with appellees as to the sharing of time. On July 17, 1997, the Trial Court granted Defendants’ motion to dismiss, "for reasons apparent in" its decision of May 2, 1997. (Order at 1). On August 15, 1997, one day before the deadline, Plaintiffs filed their notice of appeal. In response to the motion of Amici to expedite the appeal, this Court on October 7, 1997, ordered the two appeals consolidated and scheduled argument for January 5, 1998.
State Court Proceedings as to Plaintiffs’ Pseudonym Status
Also on April 10, 1997, the Trial Court ordered Plaintiffs to file a motion for permission if they were to continue to proceed in pseudonym. On April 29, 1997, Plaintiffs filed a motion in the Trial Court to proceed in pseudonym, and requested an expedited hearing on that issue. On April 30, 1997, the Trial Court issued an Order denying the motion because it was inadequately supported. Plaintiffs had not provided any identifying information about themselves so that the Trial Court could be assured that the individuals actually existed and that they truly had an interest in the litigation. The Trial Court gave Plaintiffs an additional ten (10) days to provide the information under seal. On May 7, 1997, Plaintiffs submitted the requested information as to all named Plaintiffs except for Brenda Doe. Counsel explained, in those filings, that Brenda Doe could not be located. Based upon the provided information, on May 12, 1997, the Trial Court granted the motion as to all named Plaintiffs except for Brenda Doe, who was dismissed as a party Plaintiff.
INTEREST OF AMICI
This brief is filed on behalf of individuals granted amici curiae status by the Trial Court and allowed to participate in the proceedings in that court. Most of the Amici Curiae are persons who desire to exercise their rights under the Tennessee statute and are described in more detail below. The other Amicus Curiae joining in this brief is Robert Tuke, an attorney who served on the Adoption Commission, which was created by the Tennessee Legislature ("the Legislature") to investigate the problems presented by the prior adoption statute and make recommendations concerning necessary revisions to that statute. The Amici Curiae include 98 birth parents, adoptive parents and adoptees in Tennessee adoptions who are directly affected by the Amended Law and these legal proceedings. These Amici support the Amended Law and seek to exercise their rights pursuant to its provisions or ensure that their children are allowed to do so. The Amici, rather than Plaintiffs, represent the vast majority of those birth parents, adoptive parents and adoptees who are affected by the Amended Law. Amici Birth Parents The Amici include 37 birth parents who gave birth and surrendered their children for adoption between 1956 and 1975 inclusive. Their children now range in age from 25 to 52 years old. Throughout those years, they have wondered whether their children were alive or dead, healthy or ill, normal or retarded, successful or unsuccessful, happy or unhappy. They want the Amended Law to take effect so their children can obtain information in their adoption records; they welcome contact from their children. The Tennessee Supreme Court has recognized that "women who have surrendered children for adoption may be haunted by concern about the child." Davis v. Davis, 842 S.W.2d 588, 603 n.28 (Tenn. 1992). Legal scholars have also noted that birth parents experience guilt, insomnia, depression and continual searching of the faces of children similar in age to their own children, looking for similarities. See, e.g., Jason Kuhns, "The Sealed Adoption Records Controversy: Breaking Down the Walls of Secrecy," 24 Golden Gate Univ. L. Rev. 259, 276 (1994). This is confirmed by the testimony of social workers with years of experience in adoption counseling and placement. (Baumann, Rardin and Robinson Affid., ¶ 2; Probasco Affid. passim). Evidence submitted to the Trial Court indicates that the position of these Amici in welcoming contact from their children is shared by over 99 percent of Tennessee birth parents. (Glad Affid.). Furthermore, evidence submitted to the Trial Court shows that in five other states for which corresponding data is available, namely, Arizona, New Jersey, New Mexico, North Carolina and Washington, the position of the Amici is shared by 95 percent of the birth parents. (Scott, Greenman/Gioglio, File, Giddens and Dean Affid.). Figures for those five states are summarized in a footnote. The record establishes that the Amici represent the vast majority of birth parents and that Plaintiffs’ desire to conceal their identities from their children is shared by, at most, a very small minority of birth parents. Plaintiffs continually speak vaguely of some mass of affected persons opposing the Amended Law. However, the facts are consistently to the contrary. See also Kuhns, 24 Golden Gate Univ. L. Rev. at 277. This is also reflected by the disproportionate numbers of Amici birth parents and Plaintiff birth parents. In the nineteen months between August 24, 1995 — the date the Amended Law was enacted — and the commencement of this lawsuit, only two birth parents elected to become Plaintiffs. In contrast, 37 birth parents have submitted affidavits indicating their desire to participate in this action as Plaintiffs or as Amici. A number of the Amici birth parents suffer from dangerous hereditary medical conditions about which their children should be informed as soon as possible. Janice Akers’ family has a history of congenital glaucoma, which can cause blindness if not treated early. Her father became blind by the age of 40 because he did not get treatment. She and her brother developed glaucoma at age 25, but they obtained treatment and have controlled the condition. The son whom she surrendered is now 25 years old. (Akers Affid. dated August 8, 1996 ¶¶ 1, 3). Ms. Akers’ sister died of gastric cancer, a genetic condition, at age 35. Her family also has a history of malignant melanoma and ovarian cancer. (Akers Affid. dated August 8, 1996 ¶ 4). Bonnie Blackwell’s family has a strong history of cancers of the lungs, colon and stomach. Her surrendered son is now 41 years old. (Blackwell Affid. dated August 10, 1996 ¶¶ 1-2). Debbie Collins has a genetic allergy to a particular kidney dye, which can cause severe shock. She also has heart problems caused by genetic high blood pressure. Her brother had a heart attack at age 27; he survived, but must control his condition with medication. Her daughter is 29 years old and should have this information as soon as possible. (Collins Affid. dated August 5, 1996 ¶¶ 1-4). Betty Sarvis suffers from peripheral neuropathy, another genetic condition, about which her surrendered daughter should be advised so that she can make any necessary lifestyle changes and obtain preventative care. (Sarvis Affid. dated August 6, 1996 ¶¶ 2-3). Rebecca King, who herself experienced a brain aneurism six months ago, wants to provide her birth daughter with that essential medical information, as well as the fact that the birth father died of liver disease in 1984 and suffered from epilepsy and an electrolyte imbalance. (King Affid. ¶¶ 2-4). Another birth mother, Cheryl Oliver Shumate, has a strong family history of polycystic kidney disease, which is a serious, ultimately fatal, hereditary kidney disease. (Shumate Affid. ¶ 3). In Ms. Shumate’s family, the symptoms, resulting from a slow deterioration of the kidneys that progresses by cyst formation or enlargement of the kidney, have developed when the person is in his or her 30's or 40's and may cause death before the age of 60. (Shumate Affid. ¶ 3). Her mother, uncle, and maternal grandmother all died as a result of this disease and her maternal aunt also has the disease, but has survived as the result of nineteen years on dialysis. (Shumate Affid. ¶ 4). Ms. Shumate’s great aunt also died of this disease, although she did not manifest symptoms of it until in her 70's. (Shumate Affid. ¶ 5). Her physician agrees that it would be to her birth daughter’s benefit to have this information. (Shumate Affid. ¶ 6). Another birth mother, Debra Lampley, has a long history of genetic disease, having neurofibromatosis and sarcomatosis, which is a form of cancer, and pancreatic and liver cancer. (Lampley Affid. ¶¶ 3-4). A strong history of miscarriage exists in the current generation of her family, with Ms. Lampley having had one and her sister had fourteen. (Lampley Affid. ¶ 5). Because of such a significant and extensive medical history, Ms. Lampley would like the son she gave up for adoption to have access to this information to provide to his physician or his children’s physician. (Lampley Affid. ¶ 6). Likewise, another birth mother, Barbara Stuart, is concerned about her surrendered daughter knowing the history of thyroid problems in her biological family. (Stuart Affid. ¶ 4). Ms. Stuart developed thyroid cancer when she was only 25 years old, which is an unusual medical finding. After she obtained her medical records, she noticed that the physician who delivered her daughter had noticed a node on Ms. Stuart’s thyroid during treatment, although she was never informed of this fact. Her daughter is now 28 years old. (Stuart Affid. ¶ 3). Amici Adoptive Parents The Amici also include 15 adoptive parents. They support the decision of the Legislature to allow their children to know the identities of their birth parents and to see the records of their adoptions. They believe their children should have the right to know their true origins because this will assist them both mentally and physically. It will also strengthen their adoptive families. (C. Adams, D. Adams, G. Adkins, J. Adkins, B. Atkins, D., Atkins, R. Adkisson, C. Beckwith, T. Beckwith, B. Dudley, M. Hill, Swain, J. Thompson, K. Thompson, West Affids.). The affidavits in this case establish that the Amici who are adoptive parents, not Plaintiffs, represent the majority of adoptive parents in Tennessee. Amici Adoptees The Amici also include 46 adoptees whose ages range from 25 to 52 years. Many need access to their adoption records and to their birth parents for medical reasons. The death of John William Lokey, Jr., on May 28, 1997, illustrates the need for the Amended Law and the danger of staying it. John William Lokey, Jr., and Charles Lokey were biological brothers who were adopted in 1956 in Tennessee by the Lokey family. John William, Jr., had moved to Florida before the Amended Law was enacted; Charles remained in Nashville. Charles applied for his records and is an amicus; John William, Jr., relied on Charles’s application to obtain their records. Neither knew the identities of their birth parents or their medical histories. In April or May 1997, John William, Jr., began to have pains in his abdomen but disregarded them as indigestion. After scuba diving on May 28, 1997, his pains became more severe and he went to a local hospital, but collapsed and died on the hospital steps. He was 45 years old. A cardiologist who attempted to revive him concluded that he had suffered from early coronary disease, which has a significant genetic component. It is likely that heart disease and early heart attacks run in his biological family, and that if the biological family medical history had been available, he would not have disregarded his pains and would be alive today. (Affid. of Charles Raymond Lokey dated September 23, 1997.) Another tragic example of the need for enforcement of the Amended Law is one of a pair of adopted twins, Brenda Brewster, who requested medical information about their birth family under the prior law, but only received it eight years later, by which time her twin, Faye Brewster, had died from a hereditable type of cancer. Faye Brewster might be alive today if she had been allowed to know the identities of her birth parents and birth siblings and their medical histories, and obtain their help in such treatments as bone marrow transfers. Brenda Brewster, the surviving twin, suffers from tuberculosis, severe depression, heart trouble and sudden weight gain and loss, for all of which she needs current medical information concerning her birth family. (See Brewster Affid. dated July 23, 1996). Kari Tegethoff, another adoptee amica, is legally blind, had cervical cancer at age 27, and has kidney problems that may require dialysis and a transplant in the future. (Kari Tegethoff Affid. dated August 8, 1996 ¶ 2). Jody Tegethoff has developed some paralysis in her limbs that may be the early onset of multiple sclerosis. (Jody Tegethoff Affid. dated July 31, 1996 ¶ 2). Adoptee Sandra Hodge has experienced significant medical problems, such as tumors requiring a hysterectomy and chronic asthmatic bronchitis. (Hodge Affid. ¶ 2). Ms. Hodge’s daughter also had to have a hysterectomy at age 20 because of these tumors and is experiencing respiratory symptoms suggestive of the condition of chronic asthmatic bronchitis. Ms. Hodge’s physician has advised that her family medical history is vital to assure that all family members receive the necessary medical treatment. (Hodge Affid. ¶ 2). Although she does not currently have any significant health problems, one adoptee has a small child with severe problems that have caused her to require access to her medical records. (Lyles Affid. ¶ 2). Despite his young age of six years, Ms. Lyles’ son has already had five heart surgeries, including implantation of an artificial valve, and has been diagnosed as having congenital heart disease, which will necessitate additional care and treatment. (Lyles Affid. ¶ 2). Her son’s physician has advised Ms. Lyles that her medical records are vital to assure all possible information is available about her son’s condition in order to provide proper treatment. (Lyles Affid. ¶ 2). Likewise, Kay Gardner continues to suffer from respiratory problems after having been in an iron lung for two months while an infant. Now that she has children of her own, Ms. Gardner wants to obtain complete medical information, which her children’s pediatrician has informed her is vital to assure they receive all necessary medical treatment. (Gardner Affid. dated October 25, 1996 ¶¶ 2-3). Similar concerns about the welfare of his child prompted Kevin Sanders to seek his medical records since, as an infant, he suffered from congenital maso-lacrimal obstruction, which required hospitalization and surgery when he was only three months old. (Sanders Affid. dated October 30, 1996 ¶ 2). Mr. Sanders also suffers from severe allergies and periodic migraines, of unknown cause, which require medication on nearly a daily basis. (Sanders Affid. dated October 30, 1996 ¶ 2). His first child, Patrick, was born in December of 1996 and had to be hospitalized the next month with an extremely high fever, which his pediatrician described as "of unknown origin," even after a spinal tap. The pediatrician has stated that Mr. Sanders’ family medical history "would be of importance to help care" for Patrick. Mr. and Mrs. Sanders want another child, but after what they have already suffered, they are hesitant to have another child without full information on Mr. Sanders’ family medical history. (Sanders Affid. dated September 15, 1997). Another adoptee, David Michael Swain, has a history of heart problems, including a valve prolapse condition. He recently discovered that his son has a heart murmur, indicating to their physician that the heart problems of adoptee and son are hereditary and that information about the adoptee’s birth family is needed, particularly for the son. (Affid. of David Michael Swain dated September 9, 1997). All the Amici adoptees need to know the roots from which they spring in order to know themselves and to know what they will pass down to their descendants. These Amici adoptees are typical of Tennessee adoptees in general. Damage to Amici and Others Similarly Situated The temporary restraining order imposed by the Trial Court and the stay imposed by this Court’s order have damaged the Amici and thousands of other adoptees, birth parents and adoptive parents for over nine months by the date of argument. This is in addition to the damage caused by the preceding nine months of a federal temporary restraining order and federal stays. In all, the Amended Law will have been stayed and the Amici damaged for eighteen months. The stays and temporary restraining orders have prevented the vast majority of persons who favor enforcement of the Amended Law from obtaining needed information. As of April 2, 1997, over 1,000 adult adoptees had applied for access to their records, and over 300 birth relatives had applied for access, subject to their children’s written consent. (Chittick Affid. ¶ 20). Only 8 adult adoptees have gotten their records. (Chittick Affid. ¶ 20). Lack of Alternatives for Amici The Amici and others seeking information have no adequate remedy other than enforcement of the Amended Law. Plaintiffs suggest that individuals who need medical information should petition the Tennessee courts under existing law in order to gain access to the confidential records. (Plaintiffs’ Brief at 30). However, as the Legislature concluded, this remedy is inadequate. (Tuke Affid. ¶ 2; Fowlkes Affid., exh. C; Sanders Affid. dated September 15, 1997 ¶ 6). First, the medical information in existing adoption records is several decades old and in most cases was superficial and inadequate when entered. Most of the diseases about which adoptees need information, such as cancer and cardiovascular problems, manifest themselves in middle age and later. What the adoptees and their descendants need is full and current medical information about their birth families, not sketchy records twenty to fifty years out of date. Furthermore, the inconsistent, uncertain and contradictory responses of the Tennessee courts and government agencies to adoptees’ petitions under the predecessor section, T.C.A. § 36-1-131 (1991), was a principal reason the Legislature decided to make adoption records accessible to adoptees as of right, rather than to rely upon court orders or administrative discretion. (See Tuke Affid. at 2-3; Fowlkes Affid., exh. C). The only other route by which adoptees can obtain medical information under the Amended Law is a new provision, T.C.A. § 36-1-135(c). Pursuant to that provision, upon receipt of "written evidence from a licensed health care professional and or a licensed health care facility," the Department of Children’s Services (herein "the Department") is to attempt to "contact the persons who have access to or who have or may have knowledge of such [medical] information" and ask them to supply the information for transmittal back to the inquiring doctor, clinic or hospital. This is an untested provision intended only to provide an alternate route in the event a birth parent lodges a contact veto. The Department has interpreted it to apply only in medical emergencies. (See Clark Affid. dated August 5, 1996 ¶ 3 and attachment). This provision was not intended to be the primary source of medical information to adoptees, and it cannot fulfill that function. The Statute at Issue The statute at issue consists of amendments to the existing adoption law which were enacted by the Legislature in August of 1995 and May of 1996. (1995 Pub. Ch. 532; 1996 Pub. Chs. 1054 and 1068). Plaintiffs repeatedly misstate the provisions of both the prior law and the Amended Law. The Legislature amended the prior adoption statute after three years of public hearings, study, drafting and revision by the Commission to Study the Adoption Laws of the State of Tennessee ("the Adoption Commission"), which was created by the Legislature, as well as by the Judiciary and the Finance, Ways and Means Committees of both houses of the Legislature, by various subcommittees in both houses, and by a special Joint Ad Hoc Committee of the Legislature. (See Tuke Affid.). The Legislature discussed, considered and reconciled the very concerns and arguments raised by Plaintiffs with those of other parties during this extensive deliberation process. Plaintiffs now attempt to cast these same arguments as absolute constitutional rights and claim that the Legislature could not reconcile various interests without violating such asserted rights. Before 1951, the laws governing adoption included no provisions for confidentiality of adoption participants, nor any restrictions on disclosure of adoption information. Commencing in 1951 and continuing until passage of the Amended Law, Tennessee law provided express procedures limiting and permitting access to adoption records under various circumstances. As the Legislature concluded, based upon extensive hearings and study, those provisions were not adequate in wording or in practice. The Amended Law continues the prior practice of providing limited access, but changes the access provided, the procedures, and the protections for those who do not want to be contacted. The Adoption Commission and the Legislature tried to draft a law sensitive to the needs of all the interested parties. One of the stated purposes of the Amended Law is not only to "permit [adopted persons] to obtain information about themselves from the adoption records . . to which they are entitled, but also to recognize the rights of parents and adopted persons not to be contacted by the persons who obtain such information, except in compliance with this part." T.C.A § 36-1-101(c). The drafters of the Amended Law not only took great pains to balance the adoptee’s interest in accessing his or her records against the privacy interest of those birth parents who do not want contact, but they also afforded such birth parents greater protection than previously enjoyed under the former law. Under the old law, an adoptee could go to any of several courts and either was or was not granted access to his or her records. The only criterion was "the best interest of the child or of the public." T.C.A. § 36-1-131(a) (1991). Contrary to Plaintiffs' statements (Plaintiffs' Brief at 6, 12, 21, 22), no "other compelling reason" or "good cause" was required. At no time in this process was the birth parent entitled to notice, intervention, hearing, consideration or appeal. (Plaintiffs' Brief at 6, 12, 21, 22). Contrary to Plaintiffs’ statements, (Plaintiffs' Brief at 12-13, 17, 19, 21, 22, 23), access under the prior law did not always require a court order or birth parent consent. There were also two administrative procedures under which birth parents’ identities might be disclosed to adoptees. Under one such procedure, an adoptee at least twenty-one years old could request identifying information about birth parents from the Department of Human Services ("DHS"). DHS was required to search adoption records in its possession for information about the birth parents’ locations and then to search for the birth parents themselves. If they were located, their expressed consent or refusal governed. If DHS could not locate them, however, the adoptee automatically obtained a copy of his or her original birth certificate with the identifying information. T.C.A. § 36-1-141 (1991). Under the prior law, a certified copy of the original birth certificate could also be issued upon written approval of the Commissioner of Health. Such approval would follow receipt of a sworn statement by the adoptive parents that the certificate was needed for legal purposes affecting the adoptee’s interest and specifying that purpose. T.C.A. § 36-1-128(f) (1991). Under the Amended Law, adult adoptees (at least twenty-one years of age) are entitled to their original birth certificates and certain other adoption records as of right, unless those records indicate that the adoptee was the product of rape or incest. T.C.A. §§ 36-1-127(c) and (e)(2). For those whose adoptions were finalized after March 15, 1951, access was to become effective July 1, 1996. T.C.A. § 36-1-127(c). Under the Amended Law, birth parents and other birth relatives can not obtain identifying information about an adoptee unless the adoptee is twenty-one years of age and has given the Department express written consent for such disclosure. T.C.A. § 36-1-127(c)(1)(C)(i). If the birth parent's rights were involuntarily terminated for cause, she or he may not obtain any disclosure (with or without the adoptee's consent) without a court order. T.C.A. § 36-1-127(e)(1)(B). Under the Amended Law, birth parents are now notified when their adult children request access to their adoption records and are given the opportunity to sign a contact veto. T.C.A. § 36-1-132. Violation of a contact veto is punishable by a civil action for compensatory and punitive damages, injunctive relief and attorney’s fees. T.C.A. § 36-1-128(b)(1). In addition, use of information obtained under the Amended Law to cause injury to anyone identified in such records is a misdemeanor and may also be the subject of a civil action for damages. T.C.A. § 36-1-132(f). Concerns about public disclosure of the identity and history of biological parents have also been effectively addressed by the Amended Law. The former law did not protect those birth parents who did not want contact with their children after the children received identifying information through the courts, the Department, or private detectives. The new law, however, makes harmful disclosure of any information gained under the Amended Law a criminal offense, in addition to providing civil liability. T.C.A. § 36-1-132. The Amended Law excludes from the disclosed records any information relating to "crisis pregnancy counseling" and other protected professional information. T.C.A. § 36-1-102(5)(C), (41)(C), (42)(C). Thus, Plaintiff Promise Doe’s information about the circumstances leading to her pregnancy and her letter explaining her decision, (Doe Affid. ¶¶ 6-7), would not be released under the Amended Law. No identifying information may be released without the written consent of the birth parent if she was a victim of rape or incest. T.C.A. § 36-1-127(e).
The Amended Law prevents disclosure of personal information from or about adoptive parents. Under the Amended Law, home study information, which includes "any information obtained ¼ as part of the evaluation of prospective adoptive parents," is excluded from the information made available to adoptees. The only exception is information that was "expressly included" in a report to the court that approved the adoption. T.C.A. § 36-1-102(5)(C), (41)(C), (42)(C). Such reports may include at most only a summary of a home study, not the home study itself. Information included in a report to a court that approved an adoption is unlikely to be damaging.
The Amended Law also sets forth a detailed procedure by which the State will contact birth parents or other relatives and they will be given a chance to file a contact veto if the registry does not already indicate that a veto has been filed. T.C.A. § 36-1-131. This provides additional protection to those individuals who did not have the opportunity to file a contact veto. The adoptee is forbidden to contact these individuals until the Department has completed its search and advised the adoptee whether or not a contact veto is in effect. At the time the adoptee requests information, the adoptee must swear not to contact or attempt to contact anyone eligible to file a contact veto until the Department has advised the adoptee whether or not a contact veto has been filed and remains in effect. Furthermore, the adoptee must acknowledge under oath that he or she understands the civil and criminal penalties for violation of the contact veto. T.C.A. §§ 36-1-127(f), 36-1-130, 36-1-131. (See Rogers Affid.). The Amended Law narrowed the judicial power to order disclosure of adoption records. Under the Amended Law, that power can be exercised only to satisfy one of seven specifically enumerated requirements, such as a need to treat a specific illness. T.C.A. § 36-1-138(c). Furthermore, the information to be disclosed is limited to that necessary to satisfy the requirement and the contact veto provisions apply to any such disclosure. T.C.A. § 36-1-138(d) and (g). The Contact Veto Provision The Adoption Commission modeled the contact veto provisions on the experience of New South Wales, Australia, which created the contact veto under its Adoption Information Act of 1990. (Tuke Affid. at 3). The Commission received and studied the report on the operation of that act by the New South Wales Law Reform Commission. After the New South Wales Act had been in effect for two years, the New South Wales Law Reform Commission noted evidence of only one possible breach of the contact veto and concluded it was highly unlikely that more than a very small number of such breaches occurred. (Tuke Affid., Exh. A at viii, 185-86, 188-89). The New South Wales Commission stated that such compliance "overwhelmingly points to the conclusion that the vast majority of birth parents, like the vast majority of adoptees, seek information or contact in a way that is sensitive and responsible" and further noted that "[i]t is not easy to think of other laws which have such a high degree of compliance." Id. The New South Wales Commission also observed that although opponents of the contact veto argued that it would be ineffective in protecting privacy, the statistical evidence demonstrated the opposite result. As a result, the Commission concluded that "the combination of rights to information with a prohibition on contact where this is requested has been a remarkable success." Id.
Plaintiffs And Their Information Which Is At Issue
With respect to the Trial Court’s denial of a temporary injunction and this Court’s grant of a stay, it is critical to realize that, upon the facts alleged by Plaintiffs, only one Plaintiff could actually be affected if the decision below is affirmed and this Court’s stay is vacated, but that all of the Amici and thousands of others would be denied their rights under the Amended Law if the decision below were reversed. Under the Amended Law, only the names of Plaintiff Jane Roe and the birth father of her child can be disclosed before 2006. No other information that presently can be released under the Amended Law is identified in the evidence. Jane Roe did not rely upon any assurance of confidentiality in surrendering her child. She was first pressured, then ultimately duped into the surrender and believed that her child was dead. (Compl. ¶ 25; Roe Affid. ¶¶ 3-7). Plaintiff Promise Doe gave birth to a child in 1990, whom she surrendered for adoption through Plaintiff Small World Ministries, Inc. ("Small World"). (Compl. ¶ 4). No information can be released as to this adoption prior to 2011. Plaintiff Doe’s fears about disclosing her statements about the circumstances leading to her pregnancy, her letter explaining her decision, and similar personal relevations, (Compl. ¶ 4; Doe Affid. ¶¶ 6-7), are based on ignorance and misunderstanding of the Amended Law. As described above (see supra at 22), the Amended Law prohibits disclosure of such crisis pregnancy information. Apparently neither Plaintiff Small World nor her attorneys have explained the Amended Law to her. Plaintiffs Kimberly C. and Russ C. adopted two children in Tennessee, who are now two and five years old. (Compl. ¶ 7). Consequently, no information concerning these adoptions can be released before 2012. Kimberly C. and Russ C.’s fears are based on misunderstandings of the statute. They fear that information in their home studies might be disclosed to the birth parents of their two year old adopted child Zackary. (Kimberly C. and Russ C. Affid. ¶¶ 2, 7 and 9). They apparently do not know that under the Amended Law, no information can be disclosed to a birth parent without the written consent of the adult adoptee. T.C.A. §§ 36-1-102(5)(C), (41)(C), (42)(C), 36-1-127(c)(1)(B). Consequently, Zackary’s records cannot be released to anyone before 2016, and even then, not to his birth parents without his written consent. Kimberly C. and Russ C. also apparently do not know that home study information is also protected. Information in Kimberly C. and Russ C.’s home studies can never be released, except to the extent that it was expressly included in a report to the court that approved Zackary’s adoption (See supra at 22). Plaintiff Small World is an adoption agency founded in 1985. Since its founding, Small World has received approximately 111 children born in the United States and 120 children born abroad for adoption. These children were apparently surrendered for adoption shortly after their birth, since the birth parents are said to have chosen between adoption and abortion. (Savley Affid. ¶¶ 3, 8). Therefore, there is no possibility of disclosure prior to approximately 2006. Plaintiff Small World has included in the record voluminous inquiry forms and other documents executed by its adoptive parent clients as an example of personal and private information that allegedly will be disclosed. (Savley Affid., Exhs. 1-5). Small World apparently is also unaware that disclosure of all such information is prohibited by the Amended Law, except such information as was expressly included in a report to the court that approved an adoption. (See supra at 22). SUMMARY OF ARGUMENT This matter is before the Court as a combined appeal from the Trial Court's denial of Plaintiffs' Request for a Preliminary Injunction and the Trial Court's grant of the State's Motion to Dismiss. The Motion to Dismiss was properly granted and disposes of both matters on appeal. Plaintiffs attack the grant of the Motion to Dismiss on three grounds: (1) that the wrong standard was applied by the Trial Court; (2) that the Trial Court is wrong as a matter of law because the Act allegedly retroactively deprives them of a "vested" right; and, (3) that the Trial Court is wrong as a matter of law because the Act allegedly violates a novel purported right to privacy, which they ask this Court to enunciate. None of Plaintiffs' arguments can withstand scrutiny. Under Tennessee law, the Trial Court correctly granted the Motion to Dismiss. It should be noted that Plaintiffs are only now proceeding in the Tennessee courts on assertions of novel theories of Tennessee Constitutional Law, beyond the protections of the United States Constitution. Plaintiffs first proceeded in Federal Court, and only after losing on all of their federal theories did they file this action in an attempt to locate in the Tennessee Constitution what the Federal Courts did not find in the United States Constitution. Plaintiffs' argument that the wrong standard was applied is essentially circular. They assert a theory of retroactivity inconsistent with existing law, and a theory of privacy currently unknown to the law, and then argue that since the facts alleged in their Complaint fit under these purported theories, the Trial Court erred in granting the Motion to Dismiss. To the contrary, the Trial Court correctly determined that the Complaint did not allege a cause of action under either the Tennessee law as to retroactivity or as to a right of privacy. Misstatements of prior and existing law are not factual allegations that a court must take to be true when considering a motion to dismiss. Even considering all adjudicative facts alleged by Plaintiffs as true, the Trial Court correctly understood that those very facts did not state a claim under the Tennessee Constitution. Plaintiffs alleged that disclosure of information in adoption records pursuant to the Amended Law will violate their constitutional rights. However, the Trial Court specifically found that mere disclosure of this information is not constitutionally protected under the right to privacy, (Mem. and Order at 15), or equal protection. (Mem. and Order at 16). Likewise, the Trial Court found that because the Amended Law serves the public interest, because any confidentiality under Tennessee's laws regarding adoption records has, at best, been conditional, and because any conditional confidentiality under Tennessee statute was subject to change, Plaintiffs' rights under the facts of this case were not vested and therefore not violated. (Mem. and Order at 23-28). Other individuals who are similarly situated would likewise not have any vested rights in the confidentiality of the adoption statute, in light of its history of amendment, as well as its conditional nature. The Trial Court correctly applied the standard required for a motion to dismiss. Plaintiffs' argument that the procedural changes the Legislature enacted governing release of adoption records violate the Tennessee Constitution’s prohibition against retrospective legislation is based on their false assumption that there is some vested right to assume that the procedural provisions of a statutory scheme will not be amended. Of course, that is not the law. Statutes are passed, and amended, and repealed by the Legislature on an annual basis. The amendments to the adoption law were passed by the Legislature after three years of public hearings, study, drafting and revision by its Adoption Commission, the Judiciary and the Finance, Ways and Means Committees of both houses of the Tennessee Legislature, various subcommittees in both houses, and a special Joint Ad Hoc Committee of the Legislature. (Tuke Affid.). In amending the adoption statute, the Legislature not only provided broader access to adoption records for interested persons, but also created additional safeguards against improper disclosure and unauthorized contact that could result from access to those records. Apparently conceding that their retroactivity argument must clear a high hurdle to differentiate it from the mass of other legislation passed annually, Plaintiffs attempt to portray a mythical version of the Tennessee adoption laws which had always assured anonymity and which were now being stripped away. This ingenious portrait is simply devoid of fact. The Amended Law does not violate Article I, Section 20 of the Tennessee Constitution, prohibiting "retrospective" laws. The prior law never provided, or promised, birth parents secrecy or "privacy" from their children. Any rights Plaintiffs had have been, at best, conditional, and always subject to change by the Legislature. Plaintiffs never had a vested right that the adoption statute would not be amended. The statute always provided procedures for accessing such records according to the best judgment of the Legislature as to what served the best interests of the adopted children, as well as of the public. The Legislature at all times could and often did change the accessibility of adoption records, and the adoption law has never included language prohibiting such changes. Before the Amended Law was ever considered, the adoption law had been repeatedly amended to add non-judicial means by which adoptees could obtain access to their records without consent of the birth parent. Likewise, Plaintiffs never had a vested right that the adoption records of children they surrendered would never be released. There have never been absolute restrictions on release of information concerning adoptions in Tennessee. Rather, adoption records in Tennessee have always been subject to being opened by numerous courts whenever the court deemed it to be in the adoptee’s or public's best interest, without notice to, consideration of or participation by birth parents. The Legislature has always provided procedures for such release, and has changed those procedures from time to time over the years. The Amended Law contains one more set of changes. Rather than imposing any obligations, duties or disabilities upon participants in the adoption process, the Amended Law actually balances the rights of such participants and provides protections not previously available. It is pure fiction to characterize this current change as involving some alleged "vested' right. Plaintiffs' asserted "right" to confidentiality is, at best, a mere expectation based upon their anticipated continuance of the existing law at a specific point in time. There is no constitutional, or common sense, right to assume that a statute will not be changed. If Plaintiffs misunderstood the accessibility provisions of the previous law, or if an agency such as Small World made mistaken promises of complete secrecy to them, that was a misreading of the law. Such a misreading of the statute does not create a vested right of secrecy. Likewise, the Amended Law does not violate any right to privacy protected by the Tennessee Constitution. The Amended Law does not involve fundamental rights granted protection in prior Tennessee cases, such as procreation, child-rearing, and private adult sexual activity. It involves the Legislature’s authority to amend the adoption statute by modifying the disclosure provisions in order to implement its underlying purpose. The fallacy of Plaintiffs' request that this Court somehow extend the Tennessee Constitution to prohibit the Legislature from providing for disclosure of adoption records is demonstrated by the fact that such a decision must necessarily render unconstitutional the very adoption statutes under which Plaintiffs had previously proceeded. There were no restrictions on disclosure prior to an act of the Legislature in 1951. Commencing in 1951 and continuing through the passage of the Amended Law, Tennessee law provided express procedures permitting access to adoption records under various procedures. Thus, if there is some absolute right to confidentiality of adoption records to be now discovered in the Tennessee Constitution, it would render unconstitutional the Tennessee practice up through 1951, and the procedures for disclosure of such records found in the statute from 1951 forward. To state such a proposition is to demonstrate its folly. Plaintiffs make no legal case for a constitutional mandate for confidentiality, but merely complain about the most recent procedure adopted by the Legislature, since they disagree with it as a matter of policy. Finally, we must address the emotional appeal included by Plaintiffs. One reading only their submissions would be led to grieve for their purported masses of affected persons fearing harm from the Amended Law. In truth, as with many such emotional appeals, it does not conform to the facts. Despite Plaintiffs' dire recitation, as a matter of fact only one of them, Jane Roe, is possibly subject to the immediate release of adoption records under the Amended Law. Ms. Roe admittedly did not place her child for adoption, thought her child had died, and certainly did not rely upon any statutory provisions then in effect. Plaintiffs' unfounded stories of hypothetical harm must be contrasted with the overwhelming number of affected persons who have demonstrated a desire, and a real need, for access to such records. Plaintiffs' claim to represent others also must founder on the objective evidence showing that participants in the adoption process overwhelmingly favor such disclosure. When Plaintiffs' legal rhetoric is disregarded, the simple truth is that they disagree with a policy decision made by the Tennessee Legislature after exhaustive study and debate and ask that this Court second-guess the Legislature as to a matter of policy. The decision made by the Legislature to modify a procedure that it had created was well within its constitutional competence, and a review of the merits of that decision is not within the purview of the courts. The concerns and arguments raised by Plaintiffs were discussed and considered by the Legislature during this extensive deliberation process. Plaintiffs now attempt to cast these same arguments as constitutional rights in their claim that the Legislature cannot amend the adoption statute without violating such asserted rights. However, Plaintiffs’ claim that the Legislature cannot change the adoption statute is simply not supported by Tennessee law. Plaintiffs attempt to travel on an emotional evocation of unidentified persons who fear harm. However, the proof shows that this same argument was considered and rejected by the Legislature, two federal courts, and by the Trial Court in this action. This Court should do likewise.
I. IN DISMISSING PLAINTIFFS' COMPLAINT, THE TRIAL COURT PROPERLY APPLIED THE STANDARD REQUIRED FOR A MOTION TO DISMISS.
A. THE TRIAL COURT APPLIED THE PROPER STANDARD. The standard to be applied on a motion to dismiss in Tennessee is that of testing the sufficiency of the complaint. Pursell v. First American Nat'l Bank, 937 S.W.2d 838, 840 (Tenn. 1996). In considering such a motion, the court takes the relevant and material factual allegations in the complaint to be true and determines whether such facts constitute a cause of action. Id. This is the standard applied by the Trial Court in this case. The Complaint did not allege adjudicative facts which stated a cause of action under existing Tennessee law. Plaintiffs' argument to the contrary would require this Court to adopt their novel theories of constitutional law, and to treat the pleading of such legal opinions as though they were adjudicative facts. Plaintiffs asked the Trial Court to adopt two novel theories of Tennessee constitutional law as a basis to render the statute unconstitutional. As discussed below, the Trial Court correctly rejected these proposals and properly granted the Motion to Dismiss. In their brief, Plaintiffs misapply the rule that on a motion to dismiss, the court must take all allegations in the complaint as true. Merriman v. Smith, 599 S.W.2d 548, 560 (Tenn. App. 1979). This rule applies only to allegations of adjudicative facts. The Court is not bound by Plaintiffs’ misunderstandings of the law, or by their efforts to misdescribe their misunderstandings of law as fact. Dobbs v. Guenther, 846 S.W.2d 270, 273 n.4 (Tenn. App. 1992). Plaintiffs’ misdescription of the prior law and of the Amended Law, (see, e.g., supra at 20-22), are statements of law, not of fact.
The Trial Court’s conclusions of law on the preliminary injunction motion answered the issue posed by this Court in its order of June 12, 1997, namely, "the constitutionality of the Act in respect to all citizens." The Trial Court concluded that, as a matter of law:
[A] A birth parent has no constitutional right to nondisclosure of his or her identity. (Mem. and Opin. at 16). [B] The legislature has the power to draw distinctions and to treat different groups of persons differently as long as the classification is not arbitrary and without reasonable basis. (Mem. and Opin. at 16). [C] This factor [whether the statute surprises persons who have long relied on the contrary state of the law] is not judged on whether a particular person was found to have relied on the expectation of confidentiality. What is most important is whether or not the person had a reason to believe that the records were confidential and that this rule of confidentiality would not and could not be changed.
Adoption records were not sealed until 1951 and the statutes dealing with their disclosure were amended several times thereafter. It was, therefore, foreseeable that whatever confidentiality rights might have existed were subject to change. Any reliance upon permanent and absolute confidentiality would have been misplaced. (Mem. and Opin. at 27-28).
Contrary to Plaintiffs' assertions, the Trial Court had before it an exhaustive review of Tennessee adoption law, which demonstrated that the State has never promised absolute confidentiality of adoption records and has always provided a procedure whereby such are subject to disclosure. (See supra at 17-21 and infra at 41-44). The Trial Court made extensive findings in its May 2, 1997, Memorandum and Order as to Plaintiffs’ constitutional claims, and found no basis in the record to indicate that such promises were made to Plaintiffs or other similarly situated individuals. The same findings were controlling on the pending Motion to Dismiss. B. LEGISLATIVE AND STATUTORY INFORMATION MAY BE CONSIDERED. If necessary, it would be proper for the Trial Court, or this Court, to consider the Legislative and statutory history in considering the Motion to Dismiss. Tennessee courts are, and always have been, free to take judicial notice of legislative and constitutional facts on a motion to dismiss. Banks and Collins, "Judicial Notice in Tennessee," 21 Memphis St. U. L. Rev. 431, 432-39 (1991). The case of State v. City of Nashville, 345 S.W.2d 874 (1961), was a suit to contest the validity of an annexation ordinance, in which the Court sustained a demurrer. Despite the fact that a demurrer, like a motion to dismiss, assumed an admission of all allegations of a challenged pleading, the Court held that it could take judicial notice of the report of a legislatively created commission to support the reasonableness of the ordinance, even though the conclusions and factual statements of the report were in many cases diametrically opposed to the allegations of the bill or complaint. 345 S.W.2d at 877-79.
The Tennessee Rules of Evidence reflect current practice. The rules restrict judicial notice only with respect to adjudicative facts. T.R.E. 201(a). The Advisory Committee Note on Federal Rule of Evidence 201(a), which is identical to the Tennessee rule, states:
Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body. The terminology was coined by Professor Kenneth Davis in his article An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 404-07 (1942).
* * *
"In determining the content or applicability of a rule of domestic law, the judge is unrestricted in his investigation and conclusion. He may reject the propositions of either party or of both parties. He may consult the sources of pertinent data to which they refer, or he may refuse to do so. . . [T]he parties do no more than to assist; they control no part of the process." Morgan, "Judicial Notice," 57 Harv. L. Rev. 269, 270-71 (1944).
This is the view which should govern judicial access to legislative facts. It renders inappropriate any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level. It should, however, leave open the possibility of introducing evidence through regular channels in appropriate situations.
56 F.R.D. 183, 202-03 (1972). Judicial notice of legislative facts is particularly appropriate and well established in constitutional litigation. "The judicial practice of going beyond the record for legislative facts is most pronounced in constitutional cases..." Davis, "Judicial Notice," 55 Col. L. Rev. 951, 959 (1955). In the present case, Plaintiffs provided the Trial Court only the Complaint and the unsubstantiated opinions of Dr. Pierce and Rep. Chumney. Defendants and Amici have supplied abundant evidence of legislative facts from specifically identified sources which negate Plaintiffs’ alarmist allegations and of which the Court can take judicial notice. In particular, the Trial Court and this Court can properly consider evidence of the legislative facts that the vast majority of birth parents want contact from their surrendered children, and therefore that opening records will increase adoptions and decrease abortions (see supra at 6-10 and infra at 52-56), contrary to Plaintiffs’ unsupported assertion. (Plaintiffs' Brief at 9, 25).
Plaintiffs rely on the same facts and arguments previously used in the federal and state courts, unsuccessfully, in an attempt to prevent the Amended Law from becoming effective. As set out in the Trial Court’s ruling, these do not establish any right to relief under the Tennessee Constitution.
C. PLAINTIFFS' SUIT COULD ALSO BE DISMISSED ON SUMMARY JUDGMENT.
As an alternative basis to affirm the Trial Court, this Court now has consolidated the appeals, and has the combined record. Should it wish to do so, the Court can also consider the Motion to Dismiss as if it were a motion for summary judgment, and look outside the pleadings at the entire Record. Gonzales v. Alman Const. Co., 857 S.W.2d 42 (Tenn. App. 1993).
Contrary to Plaintiffs' assertions, (Plaintiffs' Brief at 10), there is no dispute of material fact in this case. None of the parties have disputed the factual allegations of Plaintiffs in the Complaint, or in their accompanying affidavits.
II. THE AMENDED LAW DOES NOT IMPAIR ANY VESTED RIGHT OR CONTRACTUAL OBLIGATION, BECAUSE PRIOR LAW DID NOT CREATE ANY VESTED RIGHT OR REASONABLE EXPECTATION THAT BIRTH PARENTS' IDENTITIES WOULD BE KEPT SECRET FROM THEIR CHILDREN.
Article I, Section 20 of the Tennessee Constitution provides that "no retrospective law, or law impairing the obligations of contracts, shall be made." Plaintiffs assert that the Amended Law’s provisions violate this Section, but can cite no legal basis for this assertion to distinguish this law from the many others enacted by the Legislature each year.
Appellants are in the same unhappy condition as any other interest group unsuccessful before the Legislature. A review of the Tennessee case law demonstrates that the Amended Law does not violate the Tennessee Constitution because it does not interfere with any vested rights or impose new obligations.
A. THERE IS NO RIGHT TO ASSUME A LAW WILL NOT BE AMENDED.
Tennessee law on amending legislation can easily be summarized. An amendment is unconstitutional only if it divests or impairs a vested right or impairs a contractual obligation. Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993); Morris v. Gross, 572 S.W.2d 902, 907 (Tenn. 1978); Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976); Shields v. Clifton Hill Land Co., 28 S.W. 668, 675 (Tenn. 1894); Girdner v. Stephens, 75 Tenn. 280, 286 (1870). The Legislature passes, amends or repeals numerous laws each year without constitutional objection. A constitutional issue only arises if a party can establish that the Legislature’s action impairs a vested right as that term has been limitedly defined. The right claimed by Plaintiffs in this action — to prevent amendment of Tennessee law governing disclosure of adoption records — is not a vested right under appropriate tests established by the courts addressing this issue.
B. PLAINTIFFS' CLAIM IS CONTRARY TO THE EXPRESS PURPOSES OF TENNESSEE'S ADOPTION STATUTE.
The express primary purpose of the adoption statute as originally enacted in 1951 was to protect those children subject to its provisions from adoption by unfit persons and from interference by the natural parents after the adoption occurred. T.C.A. § 36-1-101(a)(2) and (3) (1991). Thus, the purpose of sealing records was to protect adoptees from interference by birth parents, not vice versa. The primacy of the adoptee’s interests was made explicit; the statute specifically stated that any conflict arising between the interests of a child and of an adult "should be resolved in favor of the child." T.C.A. § 36-1-101(c) (1991) (emphasis added). Any interests of birth and adoptive parents have always been secondary to the paramount interests of the children. Similarly, the standards and regulations promulgated to implement the prior law also reflected as primary the purposes of protecting the child and the public interest in the adoption process. (See, e.g., 1981 Standards for Child-Placing Agencies §§ 1240.4.9.10(2), 1240.4.9.10(4)(b) and (5); 1983/1984 Edition of the Tennessee Department of Human Services ("DHS") Manual, Part I at 22; 1984 Revised Edition of the DHS Manual, Part I at 24-25).
Clearly, the primary purpose of the adoption statute has always been to protect the children and not to safeguard any perceived privacy interest of the parents.
C. THE PRIOR LAW NEVER PROMISED ABSOLUTE CONFIDENTIALITY FROM ADOPTEES.
As the Trial Court noted, had the prior law unequivocally promised perpetual confidentiality from adoptees, then Plaintiffs might pose a Constitutional claim. (Mem. and Order at 28 n.6). However, Tennessee has never provided absolute confidentiality as to such records. Adoption was created by statute and, prior to 1951, there was no confidentiality. In the Legislature’s discretion, from 1951 forward, the law provided that the records could and might be opened in a variety of circumstances, none of which was based on or even considered the interests or opinions of birth parents. Access to adoption records in Tennessee has never been contingent on notice to or consent of birth parents. Birth parents never had complete assurance of anonymity and confidentiality from their children under the prior law. The prior law recognized that the vast majority of birth parents did not want their identities kept secret or "private" from their surrendered children, and the prior law did not guarantee any such "privacy." On the contrary, the prior law prescribed a form of surrender which assumed that birth parents would want future contact with their children. The form contained no assurance of confidentiality from the adoptee. On the contrary, it required the birth parent to agree "not to attempt to disrupt the child’s future relationship by visiting [or] attempting to communicate with" the child. T.C.A. § 36-1-114(d) (1991) (emphasis added). Under the prior law, as described above (see supra at 19-20), disclosure of birth parents’ identities could occur, without their consent or notification, in a variety of circumstances. If an adopted person over the age of twenty-one requested disclosure from the Department of Human Services and the Department failed to locate the birth parents, the adoptee could automatically obtain a certified copy of the original birth certificate. T.C.A. § 36-1-141(a)(3) (1991). Alternatively, the adoption records could be opened for the purpose of issuing a certified copy of the original birth certificate, with the original facts of birth, if the Commissioner of Health provided written approval, which would follow receipt of a sworn statement from the adoptive parents documenting that such a certificate was needed for legal purposes affecting the child’s interest and specifying that purpose. T.C.A. § 36-1-128(f) (1991). The sealed records could also be opened without any notification by order of several courts "if, in the opinion of the judge or chancellor, it is in the best interest of the child or of the public to have such information disclosed." T.C.A. § 36-1-131(a) (1991). The birth parents were neither notified nor allowed to respond. Likewise, birth parents had no standing to appeal any order entered by the court. T.C.A. § 36-1-131(b) and (c) (1991). In light of the above, it is illogical to argue that Plaintiffs had an expectation of secrecy from their children, much less a constitutional right to assume the adoption statute would never be amended to change the procedure by which adoptees could obtain access to their records. As noted by the United States Supreme Court, "An uncertain privilege, or one which purports to be certain that results in widely varying applications by the courts, is little better than no privilege at all." Jaffee v. Redmond, 116 S.Ct. 1923, 135 L.Ed.2d 337, 349 (1996). The evident conclusion that there was no promise of continued confidentiality is further supported by the actual reports of numerous birth parents who state that they were never promised that adoption records, which included their identities, would not be disclosed to the children they surrendered. (See Acree Affid. ¶ 5; Akers Affid. dated July 19, 1996 ¶ 5; Anderson Affid. ¶ 5; Asta Affid. ¶ 5; Baroni Affid. ¶ 5; Blackwell Affid. dated July 16, 1996 ¶ 5; Collins Affid. dated July 12, 1996 ¶ 5; Edwards Affid. ¶ 5; Fennello Affid. ¶ 5; Fickling Affid. ¶ 5; Garrett Affid. ¶ 5; Hagler Affid. ¶ 5; Horton Affid. ¶ 5; Ingram Affid. ¶ 5; James Affid. ¶ 5; Jordan Affid. ¶ 5; Letellier Affid. ¶ 5; Long Affid. ¶ 5; Mills Affid. ¶ 5; Minga Affid. ¶ 5; Monteith Affid. ¶ 5; Patterson Affid. ¶ 5; Ramsey Affid. ¶ 5; Sabra Affid. ¶ 5; Sarvis Affid. ¶ 5; Simpson Affid. ¶ 5; Vandergrift Affid. ¶ 5). As part of its extensive study of the old adoption law, the Adoption Commission heard testimony from Ms. Vallie Miller, who had been the state supervisor of adoption since before the enactment of the 1951 adoption legislation and had remained in that position for approximately thirty years. Ms. Miller testified that she did not authorize and was not aware of any promise of confidentiality to birth parents following the 1951 legislation. (Tuke Affid. at 2-3).
Furthermore, if some adoption agencies made assurances of complete confidentiality, they were improper because existing law, which was always subject to change, did not authorize any unrestricted guarantee. Carl Anderson, who participated in drafting the regulations governing adoption agencies, noted that "[a]ll agencies were or should have been aware that under Tennessee law, adoption records could be disclosed to an adoptee or to others if any of several courts concluded that it was in the best interest of the adoptee or of the public that the records be opened, and the birth parents had no right even to be notified of such a proceeding." (Anderson Affid. ¶ 5).
D. THE TRIAL COURT CORRECTLY FOUND THAT NO VESTED RIGHT WAS IMPAIRED.
In the Memorandum and Order entered May 2, 1997, the Trial Court found that there was never an absolute promise of confidentialty in Tennessee adoption law. Any provisions concerning confidentiality in prior Tennessee law were only conditional and therefore created no vested right. (Mem. and Order at 26-28). The Trial Court used the Colorado Supreme Court’s three-part analysis from Ficarra v. Department of Regulatory Agencies, 849 P.2d 6 (Colo. 1993), in determining whether Plaintiffs’ claimed right to absolute confidentiality was vested. The Colorado Court used the following variables in its analysis: "(1) whether the public interest is advanced or retarded, (2) whether the retroactive provision gives effect to or defeats the bona fide intentions or reasonable expectations of effected [sic] persons, and (3) whether the statute surprises persons who have long relied on a contrary state of the law." Id. at 15. As noted by the Trial Court, so long as the Legislature’s determination is supported by rational considerations and policy, the Court must abide by its judgment. (Mem. and Order at 22). Citing the considerable deliberations of the Adoption Commission, the Trial Court noted that the Amended Law’s purpose was "to favor the rights of adopted persons" and others to obtain information about their lives "and to permit them to obtain information about themselves from the adopted records..." (Mem. and Order at 23) (quoting T.C.A. § 36-1-101(A), (C) and (D)). The Trial Court further determined that the Legislature’s decision to include openness in the adoption process was supported by rational policy considerations. (Mem. and Order at 23-26). As a result, the Trial Court concluded that retroactive application of the Amended Law’s disclosure provisions could advance the public interest. (Mem. and Order at 26). In considering whether the Amended Law affected or defeated Plaintiffs’ reasonable expectations, the Trial Court noted that any promise of confidentiality given to Plaintiffs was never absolute, but was always subject to disclosure without notice (Mem. and Order at 26). Because adoption records were not sealed until 1951, and disclosure provisions were repeatedly amended thereafter, the Trial Court found that it was "foreseeable that whatever confidentiality rights might have existed were subject to change. Any reliance upon permanent and absolute confidentiality would have been misplaced." (Mem. and Order at 28). After weighing the three relevant factors, the Court correctly concluded that Plaintiffs did not have any vested right in the confidentiality of adoption records. (Mem. and Order at 28). III. RELEASE OF FACTUAL INFORMATION PURSUANT TO THE AMENDED LAW DOES NOT VIOLATE THE RIGHT TO PRIVACY. Plaintiffs also contend the Amended Law interferes with their constitutional right to privacy, apparently because family and human relationships are involved, albeit tangentially. As is discussed in more detail below, an examination of Plaintiffs’ claims reveals these are not the type of fundamental privacy issues protected by the Tennessee Constitution. Although the Tennessee Constitution does not expressly include a right of privacy, the Tennessee Supreme Court has recognized the existence of a constitutional right of personal privacy "grounded in the concept of liberty" in that Constitution. Davis v. Davis, 842 S.W.2d 588, 598 (Tenn. 1992). The textual sources of that right include Sections 3, 7, 19, and 27 of Article I. Davis, 842 S.W.2d at 600. Tennessee courts have recognized fundamental, constitutionally protected privacy rights in specific situations involving procreation, child-rearing and private sexual activity. Id. at 598; Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993); Campbell v. Sundquist, 926 S.W.2d 250, 261-62 (Tenn. App. 1996). Likewise, the United States Supreme Court has recognized similar protections against government interference with decisions about marriage, procreation, contraception, family relationships and child-rearing and education. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Rather than intrude upon such fundamental rights, the Amended Law merely modifies the existing provisions allowing for the limited disclosure of factual information to those most intimately affected by the adoption proceedings. Furthermore, because the Amended Law does not prohibit adoption, it is not analogous to the types of governmental restraints on personal and fundamental decision-making that have previously been found unconstitutional. See, e.g., Roe, 410 U.S. 113 (laws criminalizing abortion); Loving, 388 U.S. 1 (laws prohibiting interracial marriage); Griswold, 381 U.S. 479 (laws prohibiting married couple’s use of birth control); Campbell, 926 S.W.2d 250 (law prohibiting homosexual sodomy). Nor does the Amended Law even indirectly hinder adoption. The evidence submitted to the Trial Court demonstrates that if the Amended Law has any effect on adoption, it will promote adoption. (See infra at 53-58). There is no evidence that the Amended Law will have any negative effect on adoption.
A. THE AMENDED LAW DOES NOT ADVERSELY AFFECT ANY FAMILIAL RIGHT TO PRIVACY.
There is no legal basis for Plaintiffs’ assertion that the Amended Law violates their "familial right of privacy." (Plaintiffs’ Brief at 13). Plaintiffs do not claim that the adoption law prior to amendment, which provided for limited disclosure of factual information in adoption records, was unconstitutional. Certainly, amending the law to change the procedures and add protections cannot be said to interfere with Plaintiffs’ ability to marry, establish a home and care for and raise their children as they see fit, or develop their own personal and family values; nor would it disrupt the sanctity of their homes. The Amended Law does not violate the Tennessee Constitution. The Tennessee Supreme Court has expressly recognized the scope and limits of the state constitutional right to privacy. This right "fully protects the right of parents to care for their children without unwarranted state intervention," so long as their children’s welfare is not substantially endangered. Hawk, 855 S.W.2d at 579, 582. This right to privacy also includes "an adult’s right to engage in consensual and noncommercial sexual activities in the privacy of that adult’s home." Campbell, 926 S.W.2d at 262. In Campbell, the Supreme Court struck down the Homosexual Practices Act as an excessive and unconstitutional intrusion into the plaintiffs’ right to privacy because it prohibited private sexual activity even within "the sanctity of the home," long recognized by Tennessee law. Id. at 261-62. Here, the Legislature has only allowed disclosure of limited factual information about the adoption proceeding under limited circumstances to the adult adoptee, who is the subject of the proceeding, and if the adoptee consents, to birth relatives. (See supra at 19-23). Such disclosure is subject to the contact veto and the prohibition against harmful disclosure, and their multiple sanctions for violation, none of which existed under prior law. (See supra at 20, 22). This limited, controlled disclosure does not intrude into the sanctity of the home or interfere with Plaintiffs’ right to care for and raise their children. Although Plaintiffs characterize mere disclosure under the Amended Law as infringing on such rights, they have proffered no evidence that justifies overriding the Legislature’s actions. Their argument is that the Legislature erred in a policy decision reached after detailed study, relying on pure conjecture that an adoptee will violate a contact veto and seek contact with the birth parent, or will harm them by reckless disclosure, despite the statutory penalties. (See supra at 20-22). (Plaintiffs’ Brief at 25, 27, 28). Such speculation is not evidence and cannot constitute the excessive interference necessary to override the Legislature’s considered act. See Whalen v. Roe, 429 U.S. 589, 601-02, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) ("assumption that security provisions of the statute will be administered improperly" and possibility that judicial supervision "will provide inadequate protection against unwarranted disclosures" were insufficient for invalidation).
B. THE AMENDED LAW PROVIDES GREATER PROTECTIONS THAN WERE PREVIOUSLY ENJOYED.
There is no basis for Plaintiffs’ challenge to the Legislature’s carefully considered policy decision on the grounds of insufficient protection. The Amended Law provides more protection than prior law to those who do not want contact. These protections, which are greater than existed under the former law, reflect the drafters’ sensitivity to the needs of all interested parties and their efforts to balance the birth parents’ privacy interests with the adopted person’s interest in accessing records. As mentioned previously, (see supra at 17-19), under the old law, information from adoption records could be released without the birth parents’ notification, representation, or consideration. T.C.A. § 36-1-131(a) (1991); T.C.A. § 36-1-141(a) (1991); T.C.A. § 36-1-128(f) (1991). Nothing in the former law protected birth parents from contact or misuse of information by children who received information through the courts or through private detectives. However, the Amended Law provides the means by which birth parents can be assured they will be notified of a request for release of adoption records and also limits the information to be disclosed. T.C.A. §§ 36-1-102(5)(C), (41)(C), (42)(C), 36-1-127. Plaintiffs argue that parents who are unaware of the Amended Law and have therefore not filed a contact veto have no protection from contact by the children they surrendered for adoption. (Plaintiffs’ Brief at 16). Significantly, this challenged portion of the Amended Law provides greater protection for birth parents than existed under the prior law. As discussed previously, under the old law, there was no protection from unwanted contact for a birth parent whom the Department could not locate. T.C.A. § 36-1-141(a) (1991). In contrast, the Amended Law enables birth parents to prevent unwanted contact with a contact veto, without waiting for the Department to try to find them. Furthermore, the Amended Law provides protections not previously available in the form of sanctions for violation of the contact veto or misuse of information. T.C.A. § 36-1-132. In light of these sanctions, Plaintiffs’ contentions that the Amended Law does nothing to prohibit an adopted person from disclosing factual information to "friends and acquaintances of the biological parents, as well as the community at large" or to restrict publication of information are simply false. (Plaintiffs’ Brief at 9, 22, 28). Finally, concerns that the Amended Law will discourage adoptions because potential adoptive parents will fear the possible future disclosure of highly personal material contained in their home studies, (Plaintiffs’ Brief at 5, 17, 19, 29), are spurious since home study information is not made available to adult adoptees unless expressly included in a report to the court that approved the adoption. T.C.A. § 36-1-102(5)(C). (See supra at 22). Therefore, the Trial Court correctly dismissed the Complaint.
C. THE AMENDED LAW DOES NOT ADVERSELY AFFECT ANY RIGHT TO REPRODUCTIVE PRIVACY.
The Tennessee Supreme Court first explicitly recognized the right of reproductive privacy in the Davis case, which involved a dispute between formerly married persons over the disposition of pre-embryos. 842 S.W.2d at 600. The Court determined that "[t]he right to privacy, or personal autonomy (`the right to be let alone’)" guaranteed by the Tennessee Constitution included protection from unwarranted governmental intrusion into matters such as the right to procreate and the right to avoid procreation. Id. at 600-01. In recognizing these two equally significant aspects of the right of procreational autonomy, the Court cited the profound impact of genetic parenthood as supporting this right to decide. Interestingly, the Court first referred to the regrets of sperm donors in not having contact with their biological children, and then stated the true interest of birth parents as follows: "Even more so, women who have surrendered children for adoption may be haunted by concern about the child." Id. at 603 n.28.
Thus, the limited release of factual information to an adoptee about his or her actual adoption does nothing to interfere with an individual’s desire or decision to participate in the adoption process, but in fact serves to promote this option.
D. THE AMENDED LAW PROMOTES ADOPTION.
Even if the decision to surrender a child for adoption or to adopt a child is a "reproductive choice," the Amended Law has no negative effect on those choices. The Amended Law does not mandate that birth parents relinquish their children for adoption or forbid them from doing so, nor does it require that individuals adopt a child, nor does it forbid adoption. Indeed, the Amended Law in no way interferes with the decision to participate in an adoption. Moreover, the Amended Law does not impede adoption. Contrary to Plaintiffs’ bald assertion that parents rely on anonymity from their children when making the adoption decision and, therefore, the Amended Law will cause more abortions to occur, (Plaintiffs’ Brief at 9, 25), the evidence available to the Legislature and appearing since the Legislature’s decision indicates that if the Amended Law has any effect on adoption, it is to promote adoption. 1. Most Birth Parents Want Accessible Records. The record evidence of legislative fact shows that the vast majority of birth parents want contact with their children and therefore want accessible records. (See supra at 6-10).Likewise, the uncontradicted testimony of social workers in the record is that when birth parents surrender their children, they generally want their children to be able later to find them. (Baumann, Rardin, Robinson and Probasco Affid.). 2. Statistics Demonstrate That Adoption Rates Are Higher When Records Are More Accessible. Birth parents' general desire for adoptee access is confirmed by published statistical data on the numbers of adoptions and abortions in American states with sealed and open records. These statistics reveal that where adoption records are open to adult adoptees, adoption rates are higher than where adoption records are sealed. For example, Alaska and Kansas have always allowed adoptees access to their original birth certificates as of right. Alaska Stat. § 18.50.500(a) (1996); K.S.A. § 59-2122(a) (1994); K.S.A. § 65-2423(a) (Supp. 1996). Although these states have never restricted adult adoptees’ access to their birth parents’ identities, they have higher adoption rates than the nation and neighboring states. The table below summarizes the numbers of adoptions and the rates of adoptions per thousand persons and per thousand live births in the United States as a whole, in Alaska and Kansas, and in the four states which surround Kansas, namely Colorado, Missouri, Nebraska and Oklahoma. The rates of adoptions in Alaska and Kansas, whether measured against population or against live births, are substantially higher than those in the United States as a whole. Even more striking is the fact that adoption rates in Kansas are higher than in any of the four states that surround Kansas. This tends to confirm that it is the openness of adoption records, rather than any other local differences, which accounts for the difference in adoption rates. Adoption Rates, 1992 Adoptions Live Adoptions No. of Population per Thousand Births per ThousandState Adoptions (Thousands) Persons (Thousands)Live BirthsU.S. 126,951 255,028 .498 4,065 31.2Alaska 627 587 1.068 11.7 53.5Kansas 1,838 2,518 .730 38.0 48.4Colorado 1,416 3,463 .409 54.5 26.0Missouri 2,099 5,193 .404 76.3 27.5Nebraska 993 1,604 .619 23.4 42.4Oklahoma 2,265 3,206 .706 47.6 47.6 Sources: Flango and Flango (National Center for Court Statistics), "How Many Children Were Adopted in 1992," 74 Child Welfare 1018, 1021-22 (1995)
Alaska Bureau of Vital Statistics, 1994 Annual Report, p. 59.
Statistical Abstract 1995, Tables 27 and 90.
3. Statistics Demonstrate That Abortion Rates Are Lower When Records Are More Accessible. Statistics also reveal that where adoption records are open to adult adoptees, abortion rates are lower than where adoption records are sealed. The table below summarizes the rates of abortions obtained by residents in the United States as a whole, in Alaska and Kansas, and in the four states surrounding Kansas. The rates for 1987, which is the last year for which rates have been published, are included, as well as those for 1992, for which the rates have been compiled but not published.The table shows that the resident abortion rates for Alaska and Kansas are both less than the rate for the United States as a whole. The table further shows that the rate for Kansas is lower than (or, in one case, equal to) that for any of the four states surrounding it. Resident Abortion Rates*, 1987 and 1992 State 1987 1992 United States 26.7 25.8 Alaska 21.5 19.4 Kansas 13.4 12.7 Colorado 21.1 21.9 Missouri 19.6 17.0 Nebraska 15.5 13.9
Oklahoma 14.7 12.7
Sources: 1987 - Alan Guttmacher Institute, Abortion Factbook, 1992 Edition, p. 80
1992 - Alan Guttmacher Institute, unpublished data.
*Numbers of abortions obtained by residents, divided by numbers of women aged 15-44, in thousands.
The same conclusion can be drawn from examination of the annual numbers of adoptions reported by the governments of England and Wales and of New South Wales (the most populous state in Australia) covering several decades. (See Greenman Affid.). Those numbers show that the decline in adoptions in both jurisdictions began many years before adoption records were unsealed and that the unsealing of the records did not cause any decline in adoptions. Indeed, the numbers show that in England and Wales, the effect of unsealing records was to reduce the decline in adoptions, thereby increasing adoptions over the numbers that otherwise would have obtained. (See Greenman Affid. ¶¶ 3-8 and attachments). Published data on the annual numbers of abortions in England and Wales for several years before and after adoption records were opened there further corroborate these results. They show that the only effect of opening adoption records was a slight decrease in abortions. (See Greenman Affid. ¶ 10 and attachments). 4. Current Experience Demonstrates That The Rationale Relied Upon By Plaintiffs Has No Basis In Fact.
In their Brief, Plaintiffs cite decisions concerning sealed adoption records rendered in the late 1970s and 1980s. See, e.g., Mills v. Atlantic City Department of Vital Statistics, 148 N.J. Super. 302, 372 A.2d 646 (1977); Alma Society, Inc. v. Mellon, 601 F.2d 1225 (2d Cir. 1979), cert. denied, 444 U.S. 95 (1979); In re Assalone, 512 A.2d 1383 (R.I. 1986). The constitutional holding of those cases was that it was within the discretion of the state legislatures to determine whether and how adoption records would be disclosed. Those cases generally recognized that in some cases privacy rights of adoptees and birth parents might conflict, e.g., Mills, 372 A.2d at 651, but that it was for the legislature to reconcile any such conflicts:
The protection of a person’s general right to privacy - his right to be let alone by other people - is, like the protection of his property and of his very life, left largely to the law of the individual states.
Mills, 372 A.2d at 651 (citing Katz v. United States, 389 U.S. 347, 350-51, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).
We believe that the Legislature, as the creator of the adoption process, is the appropriate forum to articulate changes in the procedure for releasing [adoption record] information in order to reflect changes in societal attitudes.
In re Assalone, 512 A.2d at 1390. The Legislature and its Adoption Commission have done just that, after exhaustive investigation, consultations, drafting and revisions, which took more than three years. Plaintiffs also quote from those cases some dicta on the attitudes of birth parents and their alleged reliance upon "confidentiality." With the possible exception of Alma Society, 601 F.2d at 1233, these observations appear to have been based upon no quantitative information about or testimony from birth parents. Rather, they appear to have been based largely upon preconceived conclusions. Since those decisions were rendered, a vast amount of evidence has accumulated concerning the attitudes of birth parents, the consequences of adoptee searches and reunions, and the results of various statutory and administrative procedures, including the contact veto. See Kuhns, 24 Golden Gate Univ. L. Rev. at 259. This information was considered by the Legislature. As discussed in detail above, the evidence introduced by the Amici already demonstrates the near total falsity of the basic assumptions of most of these decisions, namely, that the majority of birth parents relied upon an assurance of secrecy from their children when they surrendered them, that most birth parents do not now want contact with their children, or that opening adoption records would hinder adoption or promote abortion. This case is the first to contain extensive record evidence, incorporating the developments over the last two decades, upon which accurate findings of legislative fact can be based. That evidence leads to the inevitable conclusion that where adoption records are open, adoptions are more likely and abortions less likely than where records are sealed.
IV. ANY CONFIDENTIALITY RIGHTS ASSERTED BY PLAINTIFFS ARE NOT PROTECTED BY THE TENNESSEE CONSTITUTION.
Plaintiffs assert that the Amended Law violates their "interest in avoiding disclosure of personal matters." (Plaintiffs’ Brief at 19) (quoting Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)). This contention is without merit, as the Trial Court concluded, (Mem. and Order at 15-16), and as is discussed below.
A. THE AMENDED LAW LIMITS BOTH CONTENT AND DISCLOSURE OF ADOPTION INFORMATION.
Plaintiffs inaccurately contend that access to adoption records will disclose "the most intimate details of Plaintiffs’ lives." (Plaintiffs’ Brief at 25; see also supra at 20-22, 48-49). Although the Legislature could constitutionally enact a statute as broad as that described by Plaintiffs, it did not. Home studies are not subject to disclosure, except such excerpts as are "expressly included" in the report to the court which has approved the adoption. (See supra at 21-22). No such excerpts have been identified in this case. Moreover, such excerpts are extremely unlikely to contain any embarrassing information, since the adoptions were approved. Furthermore, birth parents’ statements in the course of crisis pregnancy counseling, such as those of Plaintiff Promise Doe, are also not subject to disclosure. (See supra at 21). These two excluded categories — home study information and crisis pregnancy counseling — cover most of the allegedly confidential information complained of by Plaintiffs, with the exception of birth parents’ identities. Not only is the content of adoption information limited, its disclosure is restricted by the Amended Law. The Amended Law allows disclosure as of right only to adult adoptees. Birth parents and other birth relatives can obtain no information unless the adoptee files an express written consent. (See supra at 20). Furthermore, the Amended Law forbids public disclosure. Indeed, misuse of information obtained is subject to both civil and criminal penalties. (See supra at 20, 22). The only issue in this case, therefore, is the disclosure of the birth parents’ identities to their adult children. Plaintiffs claim that their personal preferences override the wishes of the vast majority of other birth parents, who desire disclosure (see supra at 6-10), as well as the findings and vote of the Legislature. However, Plaintiffs’ desire to conceal their identities from their birth children is not constitutionally protected, and Plaintiffs can cite no state case law as authority for such a proposition. Unlike the cases cited by Plaintiffs, which involved situations in which individuals were asked to answer questions specifically dealing with sexual activities, the information to be disclosed in this situation is limited to the fact and circumstances of parentage and the disclosure is made only to their adult children, which hardly comprises "public disclosure." Plaintiffs’ attempt to merge "confidentiality" from the world at large with confidentiality from one’s own child should be rejected, since the issue in this case is not disclosure to the world, but disclosure to one’s child. That a birth mother may not have wanted an unmarried pregnancy known to the entire world does not mean that she wants it concealed from her own child after that child comes of age, or that a birth parent’s right to non-disclosure is any greater than an adopted child’s right to disclosure.
B. PLAINTIFFS’ THEORY THREATENS THE LEGITIMACY OF PATERNITY LAWS.
Endorsement of Plaintiffs’ theory that disclosing the fact and circumstances of parentage violates a birth parent’s right of privacy would render paternity suits unconstitutional. This alone destroys any argument for such an alleged right. Paternity suits have been authorized for over four centuries for the express purpose of establishing the fact of parentage at the behest of the state, the child, or the mother. They are authorized by the law of every state. Krause, Illegitimacy: Law and Social Policy 105 (1971). Since 1975, federal law has required states to maintain effective procedures to establish paternity. 42 U.S.C. § 654(4)(A) (1975). Tennessee law expressly provides for the procedures to be followed in filing a petition to establish paternity, T.C.A. § 36-2-103, ordering tests to determine parentage, T.C.A. § 36-2-107, conducting the trial, T.C.A. § 36-2-106, and entering an order of paternity and support. T.C.A. § 36-2-108. Such provisions would be unconstitutional if Plaintiffs’ theory that birth parents have a constitutional right to keep their identities confidential or "private" from their children were accepted. The United States Supreme Court has held that a "putative father has no legitimate right and certainly no liberty interest in avoiding financial obligations to his natural child that are validly imposed by state law." Rivera v. Minnich, 483 U.S. 574, 580, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987). A birth parent has still less "legitimate right" and "liberty interest in avoiding" simple disclosure of his or her identity. Id. Birth mothers can have no greater right to hide from their children than birth fathers. Discrimination on the basis of sex is no more appropriate in this area than in any other. Tennessee Department of Human Svcs., Inc. v. Vaughn, 595 S.W.2d 62, 67 (Tenn. 1980) (privilege of putative father’s silence, but not mother’s, in paternity proceeding discriminates on basis of sex in violation of Tennessee Constitution, Art. I, § 8 and Art. XI, § 8).
Even if Plaintiffs had a constitutionally protected interest in informational privacy, the ultimate issue in this case is whether the Tennessee Constitution forbids a state to allow adoptees to know the identities of their birth parents. The right to privacy guaranteed by the Tennessee Constitution simply does not extend that far.
V. THE BALANCE OF HARDSHIPS AND THE PUBLIC INTEREST ALSO FAVORS DENIAL OF INJUNCTIVE RELIEF.
A. THE DENIAL OF INJUNCTIVE RELIEF DOES NOT RESULT IN LOSS OF ANY RECOGNIZED RIGHTS WHICH MAY NEVER BE RECAPTURED.
Plaintiffs assert, in conclusory fashion, that if the Court denies their claims, adoption records will be released and "[t]he information in these records can never be recaptured," which will result in their irreparable harm. (Plaintiffs’ Brief on Interlocutory Appeal at 30). However, Plaintiffs have failed to demonstrate the possibility of certain, immediate and irreparable injury, as is required. The extraordinary remedy of an injunction is not available to assuage "fears" or "apprehensions" of injury. Nashville Railway v. Railroad and Public Util. Comm'n, 32 S.W.2d 1043, 1045 Tenn. 1930). Rather, the injury must be certain, "threatened or imminent, and, in all probability, about to be inflicted." Id. Because Plaintiffs’ purported injuries are limited to their fears or apprehension that public disclosure or contact will occur, they have failed to demonstrate the certain injury required to justify the extraordinary remedy of injunctive relief. Although Plaintiffs submitted no evidence to the Trial Court supporting their speculation that adoptees would seek contact despite contact vetoes, or would otherwise misuse the information obtained from their adoption records, the Amici presented to the Trial Court direct and uncontradicted evidence that the contact veto effectively protects them. Because of the intermittent stays against the Amended Law’s enforcement previously granted by the federal courts, only eight adoptees had their requests for adoption records granted by the State prior to the Trial Court’s imposition of a temporary restraining order. A number of these individuals provided affidavit testimony to the Trial Court establishing that they have not violated the contact veto and will not seek contact pending information from the State regarding the results of its search, which can not proceed while the stay is in effect. (See Rogers Affid.; Peck Affid.; Buchanan Affid.; Norton Affid.; Elmore Decl.). Plaintiffs have failed to produce any evidence to the contrary regarding the effectiveness of the contact veto. Only one Plaintiff, Jane Roe, is subject to the immediate release of adoption records if the Amended Law is enforced. According to her affidavit, Plaintiff Roe placed no reliance on any promise of anonymity or confidentiality, (Roe Affid. ¶¶ 4-5; see also Mem. and Order at 27), but fears publication of the factual information by the child she surrendered and the emotional relapse this may cause. (Roe Affid. ¶¶ 13-14). However, she has adequate protection from the "irreparable harm" she fears by virtue of the Amended Law’s provision making it a Class A misdemeanor to use any information obtained under the Act to injure any person whose name was so obtained. T.C.A. § 36-1-132(f).
Plaintiffs predict that, despite all statutory restraints, adoptees will make known their existence to their birth mothers’ husbands, who may not know of their existence, and destroy their birth mothers’ marriages. (See Plaintiffs’ Brief at 15). This is myth. Adoptee searches for their birth parents, often using private detectives, have been common over the last three decades. There have been tens or hundreds of thousands of adoptee-birth parent reunions without any statutory assistance, as well as all those pursuant to statutes that unsealed records, such as in Tennessee since January 1, 1996 (as to pre-1951 adoptions), England since 1976 (Children’s Act, 1975, c. 72, § 26) and New South Wales since 1991 (Adoption Information Act 1990). Any destroyed marriages, with all their melodramatic aspects, would have been publicized by the media, which have already made adoptee-birth parent unions a staple of talk shows, sitcoms, film comedies and human interest articles. Any such destroyed marriages would have been cited repeatedly by groups that lobby for closed adoption records. Plaintiffs can point, however, to only one such report, and that was a hearsay report of a "disrupted" marriage at least twenty years ago. Mills, 148 N.J. Super. 302, 372 A.2d 646, 655-56 (cited by Plaintiffs’ Brief at 15).
B. A FURTHER STAY WILL RESULT IN SIGNIFICANT HARM TO THE AMICI AND MANY OTHERS.
In contrast to Plaintiffs’ speculations and fears of injury, the harm caused by a stay to the Amici and many others interested in the Amended Law becoming effective is actual, present and significant. Those who seek to enforce their rights to information in their adoption files, as provided by the Amended Law, represent the vast majority of those adoptees, birth parents and adoptive parents who are affected by the Amended Law. As already discussed in detail in the Facts portion of this Brief, some of the 37 birth parent Amici in this case, whose children are now from 21 to 46 years old, suffer from dangerous hereditary medical conditions about which their children should be informed as soon as possible. These conditions include glaucoma, peripheral neuropathy, polycystic kidney disease, a serious shock-inducing allergy to a kidney dye, epilepsy, high blood pressure, heart attacks, brain aneurisms, liver disease, and family histories of various cancers such as melanoma, ovarian cancer, sarcomatosis, neurofibromatosis, and cancers of the thyroid, lungs, stomach, pancreas and colon. (See supra at 8-10). In addition to their physical and medical concerns, these birth parents want improved access to adoption records and believe this is necessary for them to come to terms with the experience. Throughout the years, they have worried and wondered about their children and experienced many emotions as a result. See Kuhns, 24 Golden Gate Univ. L. Rev. at 276. Evidence submitted to the Trial Court in opposition to Plaintiffs’ request for temporary injunctive relief indicates that the position of the Amici in welcoming contact from their children is representative of the overwhelming majority of birth parents in Tennessee and other states. (See supra at 6-10). Indeed, as of April 2, 1997, only nine months since the Amended Law was to become effective, and notwithstanding temporary restraining orders and stays, over 300 birth relatives had applied for information under that section. (Chittick Affid. ¶ 20). Although Plaintiffs continually speak vaguely of some mass of affected persons opposing the Amended Law, the facts are consistently to the contrary. See also Kuhns, 24 Golden Gate Univ. L. Rev. at 277. Likewise, the 15 Amici who are adoptive parents support the right of their children to know the identities of their birth parents and to see the records of their adoptions. They believe their children have the right to know their true origins because this will strengthen them and set them free of their uncertainties, doubts and fears. They also feel this will ultimately strengthen their adoptive families. (West, B. Atkins, D. Atkins, T. Swain, B. Dudley, T. Beckwith, C. Beckwith, Hill, J. Adkins, G. Adkins, Adkisson, K. Thompson, J. Thompson, C. Adams, D. Adams Affid.). Contrary to Plaintiffs’ assertion that any harm to others due to an injunction is merely an "inconvenience," (see Plaintiffs’ Brief on Interlocutory Appeal at 30), many of the 46 Amici adoptees need access to their adoption records and to their birth parents for medical reasons. (See supra at 11-14). Their medical problems include hereditable cancers and tumors, early symptoms of multiple sclerosis, kidney disease that may require dialysis and/or a kidney transplant, congenital muso-lacrimal obstruction, severe allergies and migraines, and congenital heart disease. (See supra at 11-14). The Department has stated that over 1,200 adoptees had applied for access to their records under T.C.A. § 36-1-127(c) as of April 2, 1997. (See Chittick Affid. ¶ 20). We do not know how many of them have serious medical problems, but it likely that their number is proportionate to those among the Amici. If there should be another Faye Brewster or John William Lokey, Jr., among their number, the injunction sought by Plaintiffs might well kill yet another adoptee. (Brewster Affid. dated July 23, 1996; Charles Lokey Affid. dated Sept. 23, 1997). The stays to date have prevented the vast majority of persons who favor enforcement of the Amended Law from proceeding under it to obtain needed information solely to protect the records of, at most, one Plaintiff. Certainly a temporary injunction as to the records of that single person is the most restraint possibly indicated. The Amici and others seeking information have no adequate remedy other than enforcement of the Amended Law since the alternative provided by T.C.A. § 36-1-138 for disclosure of medical information is inadequate, as the Legislature previously concluded. (See supra at 15-16). Amici affidavits submitted to the Trial Court illustrate the inadequacy of the previous statutory procedures in responding to adoptee requests for medical information. For example, after requesting such medical information, one adult adoptee, Sandra Hodge, was advised that she had to obtain the consent of both her adopted parents and then petition the court for authorization, which would be time consuming and expensive. Because she could spare neither the time nor money to fulfill these requirements, she did not pursue the matter. (Hodge Affid. ¶¶ 3-4). Although another adoptee was able to obtain non-identifying information from his adoption file, the minimal medical information it contained was contradictory and useless to him. (Sanders Affid. ¶ 3). After experiencing difficulty obtaining needed medical records, several adoptees and a birth mother finally resorted to hiring attorneys or private investigators, who advised them the process was extremely time consuming, expensive and unlikely to result in success. (Gardner Affid. ¶¶ 4-5; Lyles Affid. ¶ 3; Fickling Affid. ¶ 3). As uncertain, expensive and often inadequate as such court proceedings were under the prior statute, they are even more so under the Amended Law's medical provision. This results because the Amended Law makes access to records under T.C.A. § 36-1-127(c) the primary instrument to protect adoptees, and court proceedings are only an alternative to be used in exceptional circumstances. See T.C.A. § 36-1-138(h). Court proceedings to open records are now subject to several new, restrictive requirements. See, e.g., T.C.A. §§ 36-1-138(b), (c)(1), (f) and (g). The only other route by which the Amici can obtain medical information under the Act, T.C.A. § 36-1-135(c), is an untested provision intended only to provide an alternate route in the event a birth parent lodges a contact veto. The Department interprets it to apply only in medical emergencies. (See Clark Affid., attachment). This provision was not intended to be the primary source of medical information to adoptees, and it cannot fulfill that function. The record demonstrates that the vast majority of those affected favor enforcement of the Act and that real harm will occur if enforcement is stayed. As against this continuing medical, psychological and emotional damage to hundreds and perhaps thousands of individuals if a temporary injunction is granted, there are only the unfounded fears of Plaintiff Jane Roe, not that her child will contact her, but that her child will learn her name. Significantly, when faced with this balancing task, the three courts that have previously heard this action have all concluded that the welfare of hundreds of adoptees, their adoptive parents and their birth parents outweighed the alleged injuries of Plaintiffs. See Doe v. Sundquist, 106 F.3d 702 (6th Cir.), cert. denied, 118 S.Ct. 51 (1997); Doe v. Sundquist, 943 F. Supp. 886, 898 (M.D. Tenn. 1996), aff'd, 106 F.3d 702 (6th Cir.), cert. denied, 118 S.Ct. 51 (1997); (Mem. and Order at 29-29).
Even if this Court were to agree that the birth parent Plaintiffs have a constitutional privilege to conceal their identities and other information from their children, Plaintiffs’ requested relief is properly limited only to an injunction prohibiting the disclosure of their own records. See United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (Supreme Court declines to provide relief to non-parties challenging the constitutionality of a statute when a narrower remedy would fully protect the litigants).
C. THE TRIAL COURT WAS CORRECT IN DENYING PLAINTIFFS’ REQUEST FOR FURTHER INJUNCTIVE RELIEF BECAUSE THE AMENDED LAW SERVES THE PUBLIC INTEREST.
The public interests that are furthered by the Amended Law have been addressed in detail above. The evidence demonstrates that Plaintiffs’ arguments that the Amended Law negatively affects the public interest is simply not supported by the record. First of all, as of April 2, 1997, over 1,000 adult adoptees had applied for access to their records, and over 300 birth relatives had applied for access, subject to their children’s written consent. (Chittick Affid. ¶ 20). Plaintiffs include among them only one person potentially affected by enforcement of the Amended Law pending the outcome of this litigation. (See supra at 30-32). This is in sharp contrast to the hundreds of adoptees and birth relatives who have applied for access, and the 98 adoptees, birth parents and adoptive parents who are Amici in this case. Consideration solely of the preferences of the persons identified to the Court demonstrates that the public interest would be best served by enforcement of the Amended Law. Further, Plaintiffs’ argument that the Amended Law will decrease adoptions and increase abortions is without basis, and is directly contrary to the statistical evidence available, as well as the uncontradicted testimony of social workers and experts with experience in adoption cases. (See supra at 6-8, 53-56). The notion that adoptees must be denied access to their original birth certificates and other adoption records for adoption to be successful is only a myth. Improving accessibility to adoption records will serve to promote the success and integrity of the adoption process, while continuing to require that adoption records remain sealed actually serves to inhibit and frustrate that important process. In the vast majority of cases — 19 out of 20 — birth parents do not want to be "protected" from discovery by their children; rather, they want their children to find them. (See supra at 6-10, 53-56). Nevertheless, such cases as Alma Society, 601 F.2d 1225, and In re Assalone, 512 A.2d 1383, have held that it is within the discretion of the state legislatures to decide whether, to what extent and by what means adoption records may be sealed and unsealed. No case has held that the Constitution obliges a state to seal its adoption records and prevent adult adoptees from learning who gave birth to them. CONCLUSION Based upon the foregoing, the Amici respectfully request that the decisions of the Trial Court be AFFIRMED. Respectfully submitted, __________________________________ Harlan Dodson III, #2368 Anne C. Martin, #15536 Julie K. Sandine, #15880 DODSON, PARKER & BEHM 306 Gay Street, Suite 400 Nashville, Tennessee 37219 (615) 254-2291 Attorneys for Amici Curiae Teresa Evetts Horton, et al. ___________________________________ Robert D. Tuke, #4650 TUKE YOPP & SWEENEY Suite 1100, NationsBank Plaza 414 Union Street Nashville, Tennessee 37219 (615) 313-3300 Amicus Curiae CERTIFICATE OF SERVICE This will certify that a true copy of the foregoing has been sent to Larry L. Crain and Kevin H. Theriot, The American Center for Law and Justice, 101 Westpark Drive, Suite 250, Brentwood, Tennessee 37027; Anita Blair, General Counsel, Independent Women's Forum, 2111 Wilson Boulevard, Arlington, VA, 22201; Kurt V. Beasley, Beaslye, Tyson & Altshuler, Suite 104 Winston Place, 104 Eastpart Drive, Brentwood, TN, 37027; R. James Woolsey and David J. Katz, Shea & Gardner, 1800 Massachusetts Ave., N.W., Washington, D.C., 20036; and John Knox Walkup, Attorney General, and Dianne Stamey Dycus, Deputy Attorney General, 425 5th Avenue North, Second Floor, Nashville, Tennessee 37243-0499, this ____ day of December, 1997.