Appendix — Barth v. Finley

Office-Supreme Court, U.S.

80-1992 FILED

MAY 21 1981

IN THE

SUPREME COURT OF THE UNITED ’S'tATES® Vs

OCTOBER TERM, 1980. ERR

NO.

IN RE

ROGER BARTH,

Appellant,

= O e«

(MORGAN M. FINLEY, Circuit Clerk),

Appellee.

APPENDICES

Patrick T. Murphy, Esq.

GOLDBERG & MURPHY, LTD. °

33 N. LaSalle St. - 2300

Chicago, IL 60602

312/782-4530

OPINION

OF THE

SUPREME COURT OF ILLINOIS

Docket No. 53796-Agenda 41-January 1981.

In Re ROGER B., Appellant (Morgan M.

Finley, Circuit Clerk, Appellee).

MR. JUSTICE MORAN delivered the opinion

of the court:

The Circuit Court of Cook County dis-

missed the amended petition of plaintiff,

Roger B., which sought a judgment declaring

Section 18 of the Adoption Act (Section) |

(Ill. Rev. Stat., 1977 Ch. 40, Par. 1522)

unconstitutional. That statute places a-

doption records and original birth records

under seal. The appellate court, ina

two-to-one decision, affirmed. 85 I11l. App.

3d 1064.

Plaintiff argues before this court that

the Section is invalid in that it (1) in-

fringes upon a fundamental right, (2)

creates a suspect classification, in viola-

tion of the equal protection clause of the

United States Constitution, and (3) vio-

a

lates plaintiff's right to receive infor-

mation.

The facts are uncontradicted. Plaintiff,

who was born in 1949, filed an amended

petition in the circuit court, asserting

that his status as an adult adoptee who

had feelings of inadequacy and uncertainty

as to his background permitted access to

his adoption records. Alternatively,

plaintiff alleged that the Section is un-

constitutional. At the hearing, plaintiff

testified that he had been searching for

his biological family for three years.

Plaintiff regarded himself as "emotionally,

ohvadeatiy: and financially comfortable."

He testified that his search was not based

on any psychiatric or medical need. Rather,

the search emanated from plaintiff's de-

sire to know "information which pertains

to [him] as a person." The trial court

> a

upheld the validity of the statute. It

also found that the statute requires a

showing of good cause, which plaintiff

failed to establish. The appellate court

affirmed, upholding the constitutionality

of tne Section. The court also held that

adulthood, in and of itself, does not con-

stitute good cause to allow access to

sealed adoption records.

The Section provides in pertinent part:

"Upon motion of any party to an

adoption proceeding the court shall,

or upon the court's own motion the

court may, order that the file re-

lating to such eee ee shall be

impounded by the clerk of the court

and shall be opened for examina-

tion only upon specific order of

the court, which order shall name

the person or persons who are to

be permitted to examine such file."

(Ill. Rev. Stat. 1977, Ch. 40,

Par. 1522).

A companion statute, sections 17(2)(a) and

17(4) of the Vital Records Act (Ill. Rev.

Stat. 1977, Ch. 111 1/2 Par. 73-17), pro-

vides that, after an adoption, the original

birth certificate shall be sealed from in-

spection except upon court order.

Neither party disputes the trial court's

finding that the statutory scheme allows

the records to be unsealed upon a showing

of good cause. The statute, unlike those

of several other States (e.g., New York

Dom. Rel Law sec. 114 (McKinney 1977)),

does not explicitly provide a good-~cause

standard. However, the legislature has

given the court authority to issue an or-

der providing access to the records. Al-

though we find no Illinois cases inter-

preting the standard to be applied, we

agree that the discretion conferred by the

statute was intended to be exercised upon

a showing of good cause.

Plaintiff contends that the right to

know his own identity is a fundamental

a4

right. He argues that the Section in-

fringes upon this right without serving a

compelling State interest, thereby vio-

lating the equal protection clause of the

Federal Constitution. Plaintiff maintains

that the right to determine one's natural

identity finds its basis under one's right

to privacy. He relies on several Supreme

Court cases involving familial relation-

ships, rights of family privacy, and free-

dom to marry and reproduce: Roe v. Wade

(1973), 410 U.S. 113, 35 L. Ed2d 147, 93

S. Ct. 705 (woman's right to terminate her

pregnancy); Eisenstadt v. Baird (1972),

405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct.

1029 (matters involving contraception) ;

Loving v. Virginia (1967), 338 U.S. 1, 18

L. Ed.2d 1010, 87 S. Ct. 1817 (freedom to

marry); Prince v. Massachusetts (1944),

321 U.S. 158, 88 L. Ed. 645, 64S. Ct. 438

pa

(matters involving child rearing); Skinner

v. Oklahoma ex rel. Williamson (1942),

316 U.S. 535, 86.L. Ed. 1655, 62 S. Ct.

1110 (the right to procreate).

These cases concern the most intimate

areas of personal and marital privacy.

The Supreme Court has been very hesitant

in expanding the list of fundamental rights.

(San Antonio Independent School District

v. Rodriguez (1973), 411 U.S. 1, 29-33, 36

L. Ed.2d 16, 40-43, 93 S. Ct. 1278, 1294-

97.) In San Antonio, the Supreme Court,

holding that the right to education is not

a fundamental right, state, "It is not

the province of this Court to create sub-

stantive constitutional rights in the name

of guaranteeing equal protection of the

laws. (411 U.S. 1, 33, 36 L. Ed.2d 16, 43,

93 S. Ct. 1278, 1297.) The court indicated

that the key to discovery if a right is

py

fundamental "lies in assessing whether

there is a right [that is] explicitly or

implicitly guaranteed by the Constitution."

(411 U.S. 1, 33-34, 36 L. Ed.2d 16, 43,

93 S. Ct. 1278, 1297; see Dandridge v.

Williams (1970), 397 U.S. 471, 485, 25 L.

Ed. 2d 491, 502, 90 S. Ct. 1153, 1161 (the

recognition of the fact that the adminis-

tration of public welfare assistance in-

volves the most basic economic needs of

improverished human beings did not render

it a fundamental right). We have found no

case holding that the right of an adoptee

to determine his genealogical origin is

explicitly or implicitly guaranteed by the

Constitution. Several courts, however,

have found that the right asserted here is

not a fundamental right. Alma Society,

Inc. v. Mellon (2d Cir. 1979), 601 F2d

1225, 1231-33; Application of Maples (Mo.

oVe

1978), 563 S.W.2d 760, 763-64; Mills v.

Atlantic City Department of Vital Statis-

tics (1977), 148 N.J. Super. 302, 311-12,

372 A.2d 646, 651; In re Sage (1978), 21

Wash, App. 803, 806-07, 586 P.2d 1201, 1203.

Virtually every State statute affects

important rights. (San Antonio Independent

School District v. Rodriguez (1973), 411

0.8. 1, 3h, 3%. B6520.16, 41.998. Ce.

1278, 1295.) Although information re-

garding one's background, heritage, and

heredity is important to one's identity,

it does not fall within any heretofore de-

lineated zone of privacy implicitly pro-

tected within the Bill of Rights. We

believe the adoptee does not have a funda-

mental right to examine his adoption re-

cords.

Inasmuch as a fundamental right is not

involved, the statute will be upheld if it

-8-

is not arbitrary and bears a rational re-

lationship to a legitimate State objective.

Village of Belle Terre v. Boraas (1974),

416 U.S. 1, 8, 39 L. Ed.2d 797, 803, 94

S. Ct. 1536, 1540; San Antonio Independent

School District v. Rodriguez (1973), 411

U.S. 2, 17, 36: Be Bav2é 26, S35, Fa @. Se.

1278, 1288; Illinois Housing Development

Authority v. VanMeter (1980), 82 I11.2d

116, 120.

Section 18 and its related statutes re-

present a considered legislative judgment

that confidentiality promotes the integrity

of the adoption process. Confidentiality

is needed to protect the right to privacy

of the natural parent. The natural parents,

having determined it is in the best interest

of themselves and the child, have placed

the child for adoption. This process is

done not merely with the expectation of

-9-

anonymity, but also with the statutory as-

surance that his or her identity as the

child's parent will be shielded from public

disclosure. Quite conceivably, the natural

parents have established a new family unit

with the expection of confidentiality con-

cerning the adoption that occurred several

years earlier. Application of Maples (Mo.

1978), 563 S.W.2d 760, 763; In re Sage

1978), 21 Wash. App. 803, 806, 586 P2d

1201, 1203; Mills v. Atlantic City Depart-

ment of Vital Stetistics (1977), 1-18 N.J.

Super. 302, 311, 372 A.2d 646, 651. See

In re Christine (1979), oR... _,

, 397 A2d 511, 513. In Application of

Maples, the Missouri Supreme Court stated:

"(T]he state at the behest of

those concerned undertook through

the adoption process to sever the

parental relationship, award cus-

tody and establish a new rela-

tionship of parent and child.

Much of the information coming

into the court's records during

adie

that process is for good reason

treated as a confidence, offering

a fresh start to the parties so

that natural parents making this

ns meer decision are assured

the parent-child relationship will

be completely severed, both legally

and socially and may put behind

the mistakes and misfortunes pre-

cipitating this fateful act. They

are assisted in this traumatic ex-

perience by the knowledge that the

records may be compromised only

on order of court and that neither

the child nor the adoptive parents

may question why mp consented

to the adoption or the circumstances

of the abandonment or neglect. If

it were otherwise, the adopted child

might reenter their lives with disas-

trous result. There must be finality

for the natural parents and a new

pa peered if there is a right of

privacy not to be lightly infringed,

it would seem to be theirs."

563 S.W.2d 760, 763. :

T ese interests of the natural parents do

not cease when the adoptee reaches adult-

hood. Alma Society, Inc. v. Mellon (2d Cir.

1979). 601 F2d 1225, 1236; Mills v. Atlan-

tic City Department of Vital Statistics

(1977), 148 N.J. Super, 302, 316, 372

A2d 653; In Stanley v. Georgia (1969), 394

Pf ee

U.S. 557, 564, 22 L. Ed.2d 542, 549, 89

S. Ct. 1243, 1248, the Supreme Court held

that "'***the right to be let alone [is]

the most comprehensive of rights and the

right most valued by civilized man. '

[Citations]"

Confidentiality almost must be promoted

to protect the right of the adopting par-

ents. The adopting parents have taken into

their home a child whom they will regard

as their own and whom they will love, sup-

port, and raise as an integral part of the

family unit. They should be given tue

opporunity to create a stable family re-

lationship free from unnecessary intrusion.

(In re Christine (1979), __ R.I. __i,

___, 397 A2d 511, 513; In re Sage (1978)

21 Wash. App. 803, 806, 586 P2d 1203; Mills

v. Atlantic City Department of Vital Sta-

tistics (1977), 148 N.J. Super, 302, 307-08,

atts

372 A2d 646, 649; In re Adoption of Spinks

(1977), 32 N.C. App. 422, 427, 232 S.E.2d

479, 483.) The Section creates a situation

in which the emotional attachments are

directed toward the relationship with the

new parents. The adoptive parents need

and deserve the child's loyalty as they

grow older, and particularly in their later

years. Application of Maples, 563 S.W.2d

760, 764. As stated in Alma Society:

"The adoptee's attainment of majority

is a definite event in the adoptee's

life; but it occurs independent of

either the legally terminated natural

family relation or the ry ee

assumed adoptive one and does not

affect termination or continuation

of those relationships." 601 F2d

Leen; baoite

The State's concern of promoting confi-

dentiality to protect the integrity of the

adoption process is well expressed by the

following excerpt from Klibanoff, Genea-

logical Information in Adoption: The Adop-

a%2%

tees Quest and the Law, 11 Fam. L.Q. 185,

196-97 (1977);

"The primary interest of the

public is to preserve the inte-

grity of the adoptive process.

That is, the contined existence

of adoption as a humane solu-

tion to the serious social

problem of children who are or

may become unwanted, abused or

neglected. In order to main-

tain it, the public has an in-

terest in assuring that changes

in law, policy or practice

will not be made which negatively

affect the supply of capable

adoptive parents or the willing-

ness of biological parents to

make decisions which are best

for them and their children. We

should not increase the risk

of neglect to any child, nor

should we force parents to resort

to the black market in order

to surrender children they can't

care for.

kkk

No one has yet shown that de-

cades of policy protecting the

anonymity of the biological parents

and the security from intrusion

of the parent-child relationship

after adoption have been mis-

guided. Quite the contrary. The

overwhelming success of adoption

as an institution which has pro-

vided millions of children with

bike

families, and vice versa, cannot

be easily attacked.

The public has a strong in-

terest, too, in preserving the

confidential non-public nature

of the process. Public atti-

tudes toward illegitimacy and

parents whe neglect or abuse child-

ren have not changed sufficiently

to warrant careless disclosure

of the circumstances leading to

adoption.

But the public also has an

interest in the mantal health of

children who have been adopted -

in order that they not become bur-

dens to society. Some provision

for the relatively small group

of adoptees whose psychological

needs are compelling would appear

necessary."

We note that only three States, Alabama,

Florida and Kansas, grant the adoptee ac-

cess to original birth records. Confiden-

tiality is perceived to promote the efficacy

of the adoption process in 42 States, where

the statutes provide for sealed birth re-

cords. Alma Society, Inc. v. Mellon (2d

Cir. 1979), 601 F2d 1225, 1235.

=15-

The State certainly must protect the

interest of the adoptee, as well as the

rights of the natural and adopting parents.

When the adoptee is a minor, there is no

dispute that the sealed-record provisions

serve this end. The child, in his new

family environment, is insulated from in-

trusion from the natural parents. The

child is protected from any stigma resulting

from illegitimacy, neglect, or abuse. The

preclusion of outside interference allows

the adopted child to develop a relationship

of love and conhesiveness with the new

family unit. Prior to adulthood, the a-

doptee's interest is consistent with that

of the adopting and natural parents.

Upon reaching majority, the adoptee

often develops a countervailing interest

that is in direct conflict with the other

parties, particularly the natural parents.

nie

The adoptee wishes to determine his natural

identity, while the privacy interest of

the natural parents remains, perhaps

stronger than ever. The Section recognizes

that the right of privacy is not absolute.

It allows the court to evaluate the needs

of the adoptee as well as the nature of

the relationships and choices made by all

parties concerned. The statute, by pro-

viding for release of adoption records only

upon issuance of a court order, does no

more than allow the court to balance the

interests of all the parties and make a

determination based on the facts and cir-

cumstances of each individual case.

We find the statute to be rationally

related to the legitimate legislative pur-

pose of protecting the adoption process.

Consequently, the Section does not uncon-

stitutionally infringe upon an adoptee's

To

right to discover his own identify.

Plaintiff argues that the Section creates

a suspect classification for which there is

no compelling State justification, thereby

violating the equal protection clause of

the Constitution. He compares his classi-

fication as an adoptee to legislative class-

ifications that have been held suspect,

such as race (Loving v. Virginia (1967),

388 U.S. 1, 18 L. Ed.2d 1010, 87 S. Ct.

1817), alienage (Graham v. Richardson

(1971), 403 U.S. 365, 29 L. Ed.2d 534, 91

S. Ct. 1848), national origin (Korematsu

v. United States (1944), 323 U.S. 214, 89

L. Ed. 194, 65 S. Ct. 193), and classifi-

cations that have been analyzed as 'quasi-

suspect," such as illegitimacy (Trimble v.

Gordon (1977), 430 U.S. 762, 52 L. Ed.2d

31, 97 S. Ct. 1459) and sex (Frontiero v.

Richardson (1973), 411 U.S. 677, 36 L. Ed.

-18,

2d 583, 93 S. Ct. 1764). Only race, alien-

age, and national origin have been defi-

nitely recognized as suspect classifications.

Just as is true with respect to fundamental

rights, the Supreme Court has been very

hesitant in expending the list of suspect

classifications. See San Antonio Indepen-

dent School District v. Rodriguez (1973),

411 U.S. 1, 28, 36 L. Ed.2d 16, 40, 93 S.

Ct. 1278, 1294; Kahn v. Shevin (1974),

416 U.S. 351, 355-56, 40 L. Ed.2d 189, 193,

94S. Ct. 1734, 1737. See also Alma

Society, Inc. v. Mellon (2d Cir. 1979) 601

F2d 1225, 1234; In re Estate of Karas (1975),

61 I11.2d 40, 50-51.

Again, the Supreme Court has not enun-

ciated specific criteria by which a sus-

pect class is determined, but has suggested

that suspect classes are those that suffer

from "an immutable characteristic deter-

w19s

mined solely by the accident of birth: and

have had a history of the relegation of

the class to an inferior status. Fron-

tiero v. Richardson (1973), 411 U.S. 677,

684-86, 36 L.Ed.2d 583, 590-91, 93 S. Ct.

1764, 1769-70.

The status of adoptee does not result

at birth, it is derived from a legal pro-

ceeding, the purpose of which is to pro-

tect the best interest of the child. (Ill.

Rev. Stat. 1977, Ch. 40, Par. 1525.) Such

status, conferred by the Adoption Act,

actually improves the position of the child

by providing a home, support, a family

unit, and loving care that might otherwise

not be present. (See Mills v. Atlantic

City Department of Vital Statistics (1977),

148 N.J. 302, 308, 372 A2d 646, 649.)

Further, the child inherits from the a-

dopting parents. (Ill. Rev. Stat. 1977,

~20-

Ch. 110 ]/2, Par, 2-4.) We find that

section 18 of the Adoption Act does not

create sa suspect classification.

Inasmuch as a suspect classification is

not involved, the State need only have a

rational basis for the statutory classifi-

cation. (San Antonio Independent School

District v. Rodriguez (1973), 411 U.S. 1,

17, 36 L. Ed.2d 16, 33, 93 S. Ct. 1278,

1288; Illinois Housing Development Author-

ity v. Van Meter (1980), 82 I11.2d 116,

120.) In this case, there is at least a

| rational basis between the statutory classi-

fication and a legitimate State purpose.

As discussed earlier, the legislature

perceived a need for confidentiality. This

confidentiality performs the socially and

legally vital role of balancing the inter-

est of the child, the interest of the

natural parents, and the interest of the

fis

adopting parents. The prohibition against

seeing the records is not restricted to

the adoptees. It applies equally to the

adoptees, adopting parents, natural parents,

and any curious third party who seeks to

look at the record. Further, as stated

earlier, the preclusion on viewing the

records is not absolute. The court may,

for good cause, order the records to be

seen. Inasmuch as a rational relationship

exists between the creation of the status

of adoptee and the State's interest in

promoting the adopting process, we find no

unconstitutional infringement.

Plaintiff also argues that his consti-

tutional right to receive information is

violated by the Section. We disagree. Al-

though the Constitution protects the right

to receive information and ideas (Virginia

State Board of Pharmacy v. Virginia Citi-

o22-

zens Consumer Council, Inc. (1976), 425

U.S. 748, 756-57, 48 L. Ed.2d 346, 355, 96

S. Ct. 1817, 1823), the first amendment

does not guarantee a constitutional right

of special access to information not avail-

able to the public generally. (Branzburg

ve Hayes (1972), 408 U.S. 665, 684, 33 L.

Ed.2d 626, 641, 92 S. Ct. 2646, 2658.) The

information sought here is the product of

the judicial process, gathered under the

State's adoption laws. Control of records

to support the highly desirable adoption

scheme stands in contrast to the preven-

tion of transfer of films (Erznoznik v.

City of Jacksonville, (1975)., 422 U.S.

205, 45 L. Ed. 2d 125, 95 S. Ct. 2268),

ideas (Stanley v. Georgia (1969), 394 U.S.

357, 22 L. Ed. 2d 542, 89 S. Ct. 1243),

and birth information (Griswold v. Con-

necticut (1965), 381 U.S. 479, 14 L. Ed.

«2%

2d 510, 85 S. Ct. 1678) in the cases cited

by plaintiff. See Application of Maples |

(Mo. 1978), 563 S.W.2d 760, 762.

Just as we held that plaintiff's right

to know his identity is not absolute,

plaintiffs right to receive information

cannot be considered at the exclusion of

the right of the other concerned parties.

(Alma Society, Inc. v. Mellon (2d Cir.

1979), 601 F2d 1225, 1233; Application of

Maples (Mo. 1978), 563 S.W.2d 760, 762;

Mills v. Atlantic City Department of Vital

Statistics (1977), 148 N.J. Super, 302,

312-13, 372 A2d 646, 652.) As stated

earlier, the Section does not totally deny

plaintiff access to his birth records. It

simply requires a court to determine that

sufficient justification exists before

releasing the information. This limitation,

founded upon protecting the adoption pro-

-24-

cess, is not an unconstitutional exercise

of State power.

In summary, we find Section 18 of the

Adoption Act contains no equal protection

violation of the Constitution resulting

from un unwarranted infringement of a

fundamental right or creation of a suspect

classification. In addition, we find no

constitutional violation of plaintiff's

right to receive information.

In this case, plaintiff's attempt to -

have his adoption records released did not

result from any physical or psychological

medical need. It arose from plaintiff's

desire to discover his natural identity.

Further, the record does not show that

the natural parents have ever waived their

privacy right by consenting to divulgence

of the information. We find that the

trial court did not abuse its discretion

-25~

in concluding that plaintiff's desire to

obtain release of the records should not

prevail over the potential infringement of

the rights of other parties. Accordingly,

the judgment of the appellate court is

affirmed.

Judgement affirmed.

MR. JUSTICE SIMON took no part in the

consideration or decision of this case.

-26-

OPINION

OF THE

APPELLATE COURT OF ILLINOIS,

FIRST DISTRICT

IN THE MATTER OF

ROGER B.,

APPEAL FROM THE

CIRCUIT COURT OF

COOK COUNTY.

HONORABLE JOSEPH

SCHNEIDER, PRESIDING

)

)

)

)

Appellant. ‘

Mr. JUSTICE McNAMARA delivered the

opinion of the court:

Petitioner, Roger B., appeals from an

order of the circuit court of Cook County

dismissing his amended petition to open

sealed birth and adoption records. He

raises several constitutional questions

concerning the validity of the Illinois

statute which places adoption records and

original birth documents under seal.

(Ill. Rev. Stat. 1977, Ch. 40, Par. 1522.)

The pertinent facts are as follows.

Four adoptees filed petitioners to

review their sealed birth records. The

trial court ruled that under the Illinois

statute, an adoptee could view original

se

birth and adoption records only upon a

showing of good cause. Petitioner filed

an amended petition alleging that adult-

hood was of itself good cause and that the

Illinois statutory scheme sealing adoption

and original birth records from adult’

adoptees was unconstitutional. Neither

side disputes the trial court's finding

that good cause is required to release

adoption and birth records to an adoptee.

At the hearing, petitioner testified

that he has been searching for his biolo-

gical family and was aware that his natural

mother had inquired about hin approximately

one year after his adoption. He did not

believe that he would be rejected by his

natural parents, and he would leave them

alone if they did not wish to see him.

Petitioner regarded himself as emotionally

stable and financially comfortable. His

-28-

search was premised simply upon his desire

to seek people realted to him by blood.

Petitioner's adoptive mother testi-

fied that she generally supported the

petitioner and his search efforts. Peti-

tioner's sister, also an adoptee, testified

that her search for her biological family

had been successful. She currently en-

joyed relationships with both her natural

and adopted families.

At the conclusion of the hearing, the

trial court ruled that petitioner's adult

status was insufficient to demonstrate

good cause. Accordingly, the court denied

petitioner's request.

On appeal, petitioner contends that

the Illinois statute violates his right to

receive important information and his

right to privacy; that his due process

rights were violated; that he was denied

-29-

equal protection of the laws; tnat the

statute is violative of the Ninth Amend-

ment; and that the trial court erred in

not determining adulthood was of itself

good cause to view original birth and

adoption records.

Petitioner initially contends that the

Illinois adoption statute violates his

right to receive important information.

While the Constitution protects the right

to receive information and ideas, Va.

State Bd. of Pharmacy v. Va. Citizens

Consumer Council, Inc. (1976), 425 U.S.

748; Kleindienst v. Mandel (1972), 408

U.S. 753, the First Amendment does not

guarantee a constitutional right of

special access to information not avail-

able to the public generally. (Branzburg

v. Hayes (1972), 408 U.S. 665; Zemel

v. Rusk (1965), 381 U.S. 1.) The

-30-

right to receive information presupposes

a willing speaker. Va. State Bd. of Phar-

macy v. Va. Citizens Consumer Council,

Inc.

The right to receive information does

not require the unwilling disclosure of

nonpublic records simply because the

adoptee desires its release. Nor can we

consider the adoptee's right to receive

information absolute to the exclusion of

the rights of others affected by disclo-

sure. (Alma Society, Inc. v. Mellon

(1978), 459 F. Supp. 912; Mills v. Atlan-

tic City Dept. (1977), 148 N.J. Super.

302, 372 A2d 646.) The information sought

by petitioner is a product of the judicial

process. (In re Maples (1978), 563 S.W.

2d 760.) The confidentiality of adoption

records serves several purposes. By

providing a statutory assurance of anony-

Sas

mity to the adoptee's natural parents,

confidentiality encourages the surrender

of children for adoption and serves to

protect the natural parents from public

disclosure of a traumatic emotional event

and the possible intrusion into their pri-

vate life by the reappearance of a child

given up years before. (In re Adoption

of Female Infant (1979), 5 Fam. L. Rep.

2311; In re Maples.) It also serves to

protect the adoptive parent from interfer-

ence by the natural parents in raising

the child and facilitates the formation of

an integrated family unit. (In re Chris-

tine (1979), 397 A2d 511; In re Spinks

(1977), 32 N.C. App. 422, 232 S.E.2d 479.)

The confidential nature of the adoption

also functions to protect the adoptee from

any stigma of illegitimacy and conflicts

between natural and adoptive parents.

«3%

(Mills v. Atlantic City Dept.; In re

Adoption of Female Infant; see also Ill.

Rev. Stat. 1977, Ch. 40, Par. 1522.) The

public interest in confidentiality is to

preserve the integrity of the adoptive

process and to provide the adoptive family

with the same autonomous environment tra-

ditionally afforded other families. (Alma

Society, Inc. v. Mellon; In re Christine.)

The statutory provision for searled birth

and adoption records is an obvious legis-

lative attempt to consider the interests

of all parties to the adoption proceeding.

As such, we do not believe that the peti-

tioner's right to receive information out-

weighs the different interests of the

other parties involved. Moreover, the

petitioner's right to receive information

regarding his biological origins is not

totally denied. Rather, it is conditioned

3%

only upon a showing of good cause. This

conditional limitation on the disclosure

of adoption records is not unreasonable

and is necessary to meaningfully balance

the varying interests of the parties. We

find that petitioner's right to receive

information has not been unconstitutionally

abridged.

Petitioner next contends that the

Illinois statute violates his right to

privacy. He asserts that the information

regarding his ancestry is a family matter

and should be free from government intru-

sion and restriction.

Although the Constitution does not

expressly mention right of privacy, the

Supreme Court has recognized that a con-

stitutional right to privacy exists.

(Carey v. Population Services Internat'1l

(1977), 431 U.S. 678; Griswold v. Conn.

7)

(1965), 381 U.S. 479.) Several matters

concerning the family have been constitu-

tionally protected from unwarranted govern-

mental intrusion, such as marriage, Loving

v. Virginia (1967), 388 U.S. 1; procrea-

tion, Skinner v. Oklahoma (1942), 316

U.S. 353; contraception, Eisenstadt v.

Baird (1972), 405 U.S. 438; abortion,

Roe v. Wade (1973), 410 U.S. 113; child

rearing, Wisconsin v. Yoder (1972), 406

U.S. 205; and family relationships, Prince

v. Massachusetts (1944), 321 U.S. 158.

Nevertheless, the constitutional guaran-

tee of privacy protects only those personal

rights which are fundamental or implicit

in the concept of ordered liberty. (Roe

v. Wade; Palko v. Connecticut (1937), 302

U.S. 319; Smith v. Shimp (1977), 562 F2d

423.) In the present case, petitioner

has presented substantial evidence of the

-35-

psychological and social significance of

hereditary information to the adoptee.

Yet, the relative social or individual im-

portance of the requested information is

not determinative. Petitioner's interest

in the biological information can be re- ©

garded as fundamental only if his asserted

right to the information is explicitly or

implicitly guaranteed by the Constitution.

(San Antonio Indep. School Dist. v. Rodri-

guez (1973), 411 U.S. 1.) Petitioner's

interest in the requested information,

while socially and psychologically impor-

tant, cannot be considered fundamental by

definition. Having determined that

petitioner's interest is not fundamental in

the constitutional sense, an that the

Illinois statute providing for sealed

birth and adoption records serves many

important interests in the adoption pro-

yo

cess, we find that the statute does not

violate petitioner's right to privacy.

Petitioner also contends that the

Illinois statute violates due process.

Freedom of personal choice in matters of

family life is one of the liberties pro-

‘tected by the Due Process Clause of the

Fourteenth Amendment. (Smith v. Org. of

Foster Families (1977), 431 U.S. 816.)

Family interests, however, are not beyond

regulation. (Moore v. East Cleveland

(1977), 431 U.S. 494.) Due process is

not an inflexible concept. (In re Stephen-

son (1977), 67 111.2d 544, 369 N.E.2d 1273.)

In determinging whether the Illinois sta-

tute violates due process, the nature of

petitioner's interest must be examined

in conjunction with the importance of the

other varying interests and the extent to

which they are served by the challenged

ae

Statute. Moore v. East Cleveland; Bd. of

Regents v. Roth (1972), 408 U.S. 564.

In the present case, petitioner's de-

sire to learn the identity of his natural

parents is not based upon medical neces-

sity, psychological trauma, religious or

moral concerns. Likewise, his wish is

not asserted for any significant social

or economic reasons. Indeed, by his own

testimony, petitioner has stated that his

desire is simply one of curiosity. Peti-

tioner's request for disclosure may have

significant impact upon the adoption pro-

cess and on the other persons involved.

The stetute providing for confidentiality

was designed, among other goals, to pro-

tect the interests of all persons involved

in the adoptive process. Release of

sealed adoption records, conditioned upon

a showing of good cause, does no more than

AG.

protect these various interests. It

places no undue burden upon the adoptee

and does not arbitrarily impose upon or

purposelessly restrain the adoptee's de-

sire for genealogical information. Such

regulation merely gives full recognition

to an adoptive family unit already in

existence and provides some protection for

the natural parents and the adoptive pro-

cess. We find no violation of due process.

Petitioner next contends that the

Illinois statute violates his right to

equal protection of the laws. He maintains

that adoptees are discriminated against

because only they must secure a court or-

der to obtain birth records and that such

a classification is inherently suspect.

Suspect classes have been described as

those which suffer from "an immutable

characteristic determined solely by the

aiGa

accident of birth." (Frontiero v. Richard-

son (1973), 411 U.S. 677, 686.) Tradi-

tional indications of suspect classes

have been a history of purposeful unequal

treatment and relegation to a position of

political powerlessness. (San Antonio

Indep. School Dist. v. Rodriguez.) Sus-

pect classifications are subject to the

strictest standard of judicial review.

(Graham v. Richardson (1971), 403 U.S.

365.) On this basis, only race, McLaugh-

lin v. Florida (1964), 379 U.S. 184; alien-

age, Graham v. Richardson; and national

origin, Omaya v. California (1948), 332

U.S. 633, have been designated as suspect

classifications. We do not believe that

adoptees satisfy suspect criteria. It

cannot be said that adoptees derive their

status from any "accident of birth." The

adoptee's status is derived from a legal

-40-

proceeding. (Mills v. Atlantic City

Dept.) Adoptees have not been relegated

to an inferior status; they are not poli-

tically disadvantaged or legislatively

powerless.

Requirement of a court order to view

original birth records does not subject

adoptees to any invidious discrimination.

Equal protection does not require that all

persons be treated equally. (McGowan v.

Maryland (1961), 366 U.S. 420; People v.

Pembrock (1976), 62 111.24 317, 342 N.E.

2d 28.) The Illinois statute is fairly and

substantially related to a legitimate

state interest. It places only a rea~

sonable limitation on access to sealed

adoption records. We find no violation

of equal protection.

We find no merit in petitioner's

next contention that the Illinois statute

shia

violates his Ninth Amendment fundamental

right to an identity. The question is

not, as petitioner contends, whether an

adult adoptee has the right to an identity,

but rather, is whether an adult adoptee

has a constitutionally protect right to

know one’s ancestors. We perceive no such

right. It cannot be said that this as-

serted right is of such a character that

it cannot be denied without violating

those fundamental principles of liberty

and justice which lie at the base of all

our civil and political institutions.

(Powell v. Alabama (1932), 287 U.S. 45.)

Nor does the restricted access to adoption

records offend some principle of justice

so rooted in the traditions and conscience

of our people as to be ranked as funda-

mental. Speiser v. Randall (1958), 357

U.S. 513; Leland v. Oregon (1952), 343

«44

U.S. 790.

Petitioner finally contends that the

trial court erred in determining that

adulthood was not of itself good cause to

have access to the adoption records. He

maintains that an adult is responsible

enough to cope with receipt of such infor-

mation and that any determination of good

cause must be resolved in furtherance of

the adoptee's welfare. We do not believe

that any finding of good cause can be so

simply determined.

Good cause requires an analysis of

many factors, which will necessarily vary

depending upon the facts of each case.

Some of the factors are the need for the

genealogical information, the nature of

the petitioner's request, the age and

maturity of the adoptee, the proposed use

of the information, and any countervailing

-43-

considerations. In any event, a deter-

mination of good cause must reflect serious

consideration of the interests of all per-

sons involved.

In the present case, petitioner's re-

quest is not asserted for any special need.

The trial court correctly dtermined that

adulthood itself does not conatitute good

cause.

For the foregoing reasons, the judg-

ment of the circuit court of Cook County

dismissing the petition to open petitioner's

sealed birth and adoption records is af-

firmed.

Judgment affirmed.

SIMON, J., concurs.

-4he

Mr. JUSTICE RIZZI, dissenting:

The petitioner is an adult adopted

person who seeks to view his birth records.

The records were sealed pursuant to a

statutory scheme in effect at the time

_of his birth, and they remain sealed in

accosdance with the statutory provisions

as they presently exist. I11. Rev. Stat.

1977, Ch. 40, Par. 1522; Ch. 111-1/2,

Pars. 73-17(2)(a), (4). The majority up-

holds the constitutionality of the statu-

tory provisions as to adults. I respect-

fully dissent. In my opinion, the statu-

tory provisions are unconstitutional and

void as to adults.

To me, an adult's decision as to whether

he wishes to know the identity of his gene-

tic parents is a private and personal

decision which he has a fundamental right

to make for himself. In this regard, the

-45-

constitution, guarantees that fundamental

rights, even those not explicitly mentioned

in the constitution, shall be guaranteed.

Griswold v. Connecticut, 381 U.S. 479, 482-

85 (1965).

The fact that we are dealing here with

a fundamental right is illustrated by the

questions we all have about ourselves. What

are the physical characteristics to which

my children may be genetically prone? What

is my ancestral nationality or religious per-

suasion? What sufferings and endurances are

in my roots? What achievements or feats can

I point to with ancestral pride? Can anyone

seriously deny that one's liberty to pursue

these and similar questions is "so rooted"

in the traditions end conscience of our

people "as to be ranked as fundamental"? See

Griswold, 381 U.S. at 493 (Goldberg, J.,

concurring, quoting Snyder v. Massachusetts,

291 U.S. 97, 105 (1934)). Thus, the right to

-46-

know one's individually created identity

must be considered a fundamental right.

For those persons that are adopted, how-

ever, the only way that this fundamental

right can be meaningful is to include

within it one's liberty to know the identity

of his genetic parents. In my opinion,

this inclusion is demanded within the

quintessential meaning of the fundamental

right to know one's individually created

identity.

Moreover, a comparison of this right

with rights that have been held to be

fundamental supports the conclusion that

this is a fundamental right. Examples

of rights which have been held to be

fundamental include a woman's right to

terminate her pregnancy*l , matters invol-

*l Roe v. Wade, 410 U.S. 113 (1973).

oy ,

ving procreation*2, activities relating to

marriage*?, matters involving contracep-

tion*4, matters of family relationships*),

and child rearing and education*®, The

common element which ties these protected

rights together is that they involve a

private choice about one's personal life to

be made by each individual without govern-

mental interference. An adult's right to

decide whether he wants to know the iden-

tity of his genetic parents is a right

that is part of the same strain and con-

Skinner v. Oklahoma, 316 U.S. 535

(1942).

Loving v. Virginia, 388 U.S. 1 (1967).

«4 Bisenstadt v. Baird, 405 U.S. 438

(1972).

Prince v. Massachusetts, 321 U.S. 158

(1944).

Pierce v. Society of Sisters, 268 U.S.

510 (1925); Meyer v. Nebraska, 262

U.S. 390 (19 ‘

~48-

tains the same common element. In my

opinion, it is likewise a fundamental

right protected by the constitution.

Having concluded that this case in-

volves a fundamental right protected by

the constitution, there remains the in-

guiry as to whether the statutory provi-

sions are justified by a compelling state

interest and are narrowly drawn. Roe v.

Wade, 410 U.S. 113, 155 (1973). In dis-

cussing the purpose of the statutory pro-

visions, the majroity opinion states that

by “providing a statutory assurance of

anonymity to the adoptee's natural parents,

confidentiality encourages the surrender

of children for adoption and serves to

protect the natural parents from public

disclosure of a traumatic emotional event

and the possible intrusion into their pri-

vate life by the reappearance of a child

-49-

given up years before."

First, in my opinion, the claim that

sealing the birth records of adopted

adults "encourages the surrender of child-

ren for adoption" is ikenmie: In this

regard, it is interesting to note that

there has been no showing that sealing

birth records of adult adopted persons en-

courages the surrender of children for

adoption. As an example, the statutory

provisions in this case were adopted in

Illinois in 1961.*! Using the largest

*! Prior to 1945, there were no statu-

tory provisions in Illinois for sealing

the birth records of adopted persons.

Between 1945 and 1961, birth records

were sealed to all but the adult

adopted or hae 5 Ill. Rev. Stat. 1959,

Ch. 111-1/2, Par, 48 al. It was not

until 1961 that the present statutory

provisions, which preclude both minor

and adult adopted persons from viewing

their birth records, went into effect.

Ill. Rev. Stat. 1961, Ch. 4, Par. 9.1-

18; Ch. I1I-17Z, Para. 73-17(2)(a),(4).

«30s

county in Illinois as a reference, there

were 3,345 adoptings in Cook County in

1960, when adopted adults were able to

view their birth records. In 1978, after

the statutory provisions had been in

effect for 17 years, there were only 2,089

adoptions in Cook County. Administrative

Office of Illinois Annual Report to the

Supreme Court (1960 and 1978).

Moreover, in order to be valid, the

statutory provisions must be narrowly drawn

to represent only the legitimate state

interests at stake. Roe, 410 U.S. at 155;

Doe v. Bolton, 410 U.S. 179, 211 (1973)

(Douglas, J., concurring). The legitimate

interest which the state has in adoptions

is the welfare of the child. The state

cannot claim a legitimate interest in

encouraging women to give up their child-

ren for adoption. I think a state would

pers

be on perilous ground if it actively en-

couraged women, for whatever reason, to

divest themselves of their children so

that the children may be adopted. Also,

in view of the holding in Roe v. Wade,

there is a serious constitutional question

as to whether the state may effectively

encourage adoptions prematurely, for then

it may be violating itself too early in

the private abortion vis-a-vis adoption

decision of the pregnant woman. *®

Next, the maority opinion states that

one of the purposes of the statutory pro-

visions is “to protect the natural parents

from public disclosure of a traumatic emo-

tional event and the possible intrusion

#© =n Roe, 410 U.S. at 163-64, the court

held that the state may become invol-

ved in the abortion decision only

after the first trimester.

-52-

into their private life by the reappearance

of a child given up years before." I

agree that protecting the genetic parents

from public disclosure of a traumatic emo-

tional event may be a concern of the state.

But I cannot agree that it is a compelling

state interest. Laws are not generally

enacted to protect persons from the conse-

quences of their own acts on their private

lives. As an example, we do not have laws

which seal annulment or divorce records,

although the surfacing or disclosure of

an annulment or divorce years after the

event may prove devastating to new founded

family relationships .*? Indeed, the

*? See e.g., Wolfe v. Wolfe, 76 I11.2d 92,

389 N.E.2d 1143 (1979). In Wolfe, a

marriage of over nine years was annul-

led as a result of the husband's dis-

covery that his spouse had been pre-

viously married and divorced. The an-

nulment was granted even though a child

had been born during the marriage.

oO

traumatic and emotional events of an

annulment or divorce are often described

in detail in published court opinions;

yet, there does not seem to be a compelling

state interest in sealing annulment or di-

vorce records.

The majority opinion next states that

the statute "serves to protect the adop-

tive parent from interference by the na-

tural parents in raising the child and

facilitates the formation of an integrated

family unit." Of course, the parents of

an adopted child should be protected from

interference by the genetic parents in

raising the child, and the child should be

raised in an integrated family unit. But

this proposition does not answer the ques-

tion inolved here. The petitioner and

others similarly situated are no longer

children; they are adults. Admittedly,

-54-

the interests we are discussing are com-

pelling while the adopted person is a

child, but they cease to be compelling when

he becomes an adult.

The majority opinion next states that

the "confidential nature of the adoption

also functions to protect the adoptee from

any stigma of illegitimacy and conflicts

between natural and adoptive parents."

However, the argument apparently presup-

poses that all adopted children are ille-

gitimate, which is obviously not true.

This observation is relevant because an

argument could be made that if an adopted

person is permanently kept from being in-

formed, he will naturally assume that he

was illegitimate. Thus, the statutory

provisions may actuallycause people to

maintain a "stigma of illegitimacy" rather

than prevent the condition.

-55-

The majority opinion next states that

the "public interest in confidentiality is

to preserve the integrity of the adoptive

process and to provide the adoptive family

with the same autonomous environment tra-

ditionally afforded other families."' How-

ever, the fact that several states and

nations*!® allow adult adopted persons to

#10 aia. Code Ann. Tit. 26 §26-10-4 (Supp.

1979); Kan. Stat. Ann. §65-2423(a)

(Supp. 1979); Fla. Stat. Ann. §§282.22,

63.162 (West) (Supp. 1980); England,

the Adoption Act. 1976, Section 51;

Finnish Law, Pr. 30a, H10; Laws of

State of Israel, Adoption of Children

Law, 5720-1960, par. 27; Adoption

(Scotland) Act 1978, ch. 28, par. 45

(5); Wales, The Adoption Act 1976,

Section 5l.

The Adoption Act 1976 was enacted by

the English Parliament after receiving

recommendations from a committee spe-

cially formed to research, hear evi-

dence and study adoption problems.

The committee filed its recommendations

in 1976 under a report entitled Report

-56-

view their birth records, without any

apparent ill effect, demonstrates that pre-

venting adult adopted persons from viewing

their birth records is not a prerequisite

for either preserving the integrity of the

adoptive process or for providing the adop-

tive family with the same autonomous en-

vironment traditionally afforded other

families. This position is also supported

410

(cont.) of the Departmental Committee

on the Adoption of Children. (Cmnd.

e Report states at page 85:

"The “weight of the evidence as a whole

was in favour of freer access to back-

ground information, and this accords

with our wish to encourage greater

openness about adoption. We take the

view that on reaching the age of

majority an adopted person should not

be denied access to his original birth

records. We therefore recommend that

all adopted adults in England and

Wales, whenever adopted, should in

future be permitted to obtain a copy

of their original birth entry, and

that in Scotland the age at which

access to original birth records is

permitted should similarly jbe 18, in-

stead of 17 as at present.’

-57-

by the proposed Model State Adoption

act! , which provides:

The original certificate remains

sealed to the adoptee until he

attains majority, at which time

he may inspect the original record

which contains the names of his

birth parents. 45 Fed. Reg. 33,

10639 (1980).

Accordingly, in my opinion, the “in-

tegrity of the adoptive process" and the

“autonomous environment" erguments do not

demonstrate compelling state interests for

the statutory provisions involved here.

Thus, the arguments are unavailing to deny

the adult petitioner his fundamental right

to view his birth record.

ll

The proposed Model State Adoption Act

was recently developed pursuant to

Title II of the United States Code.

The Act, for the first time, assembles

the different statutes relating to

adoption into a unified code which

may be enacted in whole or in part by

the states. 45 Fed. Reg. 33, 10624

(1980).

-58-

The majority opinion next states that

the "statutory provision for sealed birth

and adoption records is an obvious legis-

lative attempt to consider the interests of

all parties to the adoption proceeding."

I disagree. Plainly, the statutory provi-

sions disregard the interests of adopted

adults .*2

12

Rather, the statutory scheme

It is interestng to note that the sta-

tutory provisions effectively deprive

adopted adults of possible inheri-

tances. This is readily apparent when

one considers the adoption does not

cut off one's right to inherit from

his genetic parents or from the es-

tates of his other genetic relatives.

In_ re Estate of Cregar, 30 I1l. App.

3d 798, 800, 333 N. os 2d d 540, 542 (1975).

How can adopted adults inherit from

their genetic parents or genetic rela-

tives if the law prohibits them from

finding out their identity? The cir-

cumstances become virtually absurd

when one considers 30, 40 and 50 year

old adopted adults being denied their

rightful inheritances because the law

prevents them from knowing the persons

from whom they are legally entitled to

inherit. I accept the argument that

there is a compelling state interest

to effectively deprive them of their

inheritance while they are minors, but

I deny such a compelling state inter-

est exists after they become adults.

-59-

primarily attempts to protect the interests

of the other parties that are involved.

But regardless of one's feelings about the

validity of this proposition, the important

point is that the answer is not determina-

tive of the critical issue involved here.

We are concerned with whether there is a

compelling state interest to deny certain

adults a fundamental right and not whether

there is a showing that the statutory scheme

has some rational relationship to the ef-

fectuation of a proper state purpose. At-

tempting to balance the interests of the

parties may be a proper state purpose, but

that would not be sufficient to permit the

abridgment of the petitioner's fundamental

personal liberties. In Griswold v. Connect-

icut, it is stated:

In a long series of cases this

Court has held that where funda-

mental personal liberties are in-

-60-

volved, they may not be abridged

by the States simply on a showing

that a regulatory statute has some

rational relatipnship to the ef-

fectuation of a proper state pur-

pose. "Where there is a signifi-

can encroachment upon personal

liberty, the State may prevail

only upon showing a subordinating

interests which is compelling,"

Bates v. Little Rock, 316 U.S.

516, 524. The Law must be shown

"necessary,.and not merely ra-

tionally related, to the accom-

plishment of a permissible state

policy." McLaughlin v. Florida,

B79 U.S. 184, 196. See Schneider

gn MI Cla

concurring.

Thus, even if the legislature had done a

perfect job of balancing the interests of

all parties in the adoption process, the

statutory provisions would nevertheless be

unconstitutional unless a compeliing state

interest is shown. In my opinion, no

discernable compelling state interest has

been shown.

In reaching my conclusion, I recognize

-6l1-

that the state has an interest in pro-

tecting the welfare of children and in

safeguarding them from matters which might

prevent their growth into free and inde-

pendent well-developed citizens. See

Carey v. Population Services International,

431 U.S. 678, 706-07 (1977) (Powell, J.,

dissenting). But the petitioner and others

similarly situated are no longer children;

they are adults. The compelling state

interest in protecting their welfare as

children ceased when they became adults .*!

Accordingly, as to adults, the statu-

tory provisions are not justified by any

#13 The fact that a compelling state in-

terest can commence or cease after a

eriod of time is no longer debatable.

n Roe v. Wade, 410 U.S. 113, 163-64

(1973), the Court held that the state

has a compelling state interest in

ae ag abortions after the first

trimester, but prior to that time,

the state may not interfere in the

decision.

@62-

compelling state interest. Therefore, they

violate the adult petitioner's fundamental

right to know the identify of his genetic

parents. This fundamental right, like

other fundamental rights not explicitly

mentioned in the constitution, is a person-

al right "retained by the people" within

the meaning of the Ninth Amendment .**4

Thus, it is a fundamental right which is

protected by the Fourteenth Amendment from

infringement by the states. See Griswold,

381 U.S. at 499 (Goldberg, J., concurring).

Consequently, I believe that the trial

court erred in dismissing the amended

petition to allow the adult petitioner to

view his birth records. I would reverse

#14 see Griswold, 381 U.S. at 482-85 and

Doe v. Bolton, 410 U.S. 179, 209-13

73) (Wouglas, J., concurring) for

a discussion of fundamental rights

that have been included within the

penumbra of the Bill of Rights.

-63-

the dismissal and remand the case for

further proceedings consistent with what

is stated herein.

«$4-

OPINION

OF THE

TRIAL COURT

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, COUNTY DIVISION

)

IN THE MATTER OF B 78 CO 307

MEMORANDUM OPINION AND ORDER

This cause comes before the Court on

the petitioner's second amended petition

for entry of an order permitting petitioner

to view his original court and birth re-

cords or, in the alternative, for entry

of an order declaring the Illinois sta-

tutes regarding confidentiality of such

records unconstitutional (Ill. Rev. Stat.

Ch. 40 §1522 (1977). Petitioner is an

adult who believes that he was adopted as

an infant in a proceeding in the Circuit

Court of Cook County. He allges an emo-

tional need for access to the information

contained in the files in quest on, and

maintains that this need is legally suf-

-65-

ficient to enable the Court to open the

files and permit their inspection.

The initial petition and first amended

petition were filed by the petitioner to-

gether with three other adult adoptees,

each of whom stated their own individual

reason for seeking access to their records.

Following submission of briefs and oral ar-

guments, this Court entered a memorandum

opinion and order which rejected the con-

stitutional challenge and dismissed the

petition filed on behalf of the four

petitioners. This Court also ordered that,

in the event that any individual petitioner

should chose not to utilize the informal

procedure mentioned therein, that indivi-

dual was to file a verified petition on

his own behalf, as the present petitioner

has done.

-66-

CONSTITUTIONAL ISSUE

In his second amended petition, peti-

tioners has again urged this Court to

declare the Illinois statutes regarding

confidentiality of adoption records uncon-

stitutional. This issue was fully dis-

cussed by this Court in the previous opin-

ion in this cause and petitioner has ad-

vanced no further arguments or produced

any additional authority in support of the

arguments made previously. Since this

court's opinion sustaining the constitu-

tionality of the statute there has been a

similar holding relating to the New York

statute in the Federal Court. Alma Society,

Inc. v. Mellon, 459 F.Supp. 921 (1978).

This Court has reconsidered its previous

holding and finds no reaso to alter that

holding. Therefore, the previous holding

of this Court that the Illinois statute is

yy

constitutional shall stand as expressed in

the previous opinion.

STATUTORY ISSUE

The only issue remaining before this

Court is whether the Court should exercise

its discretion and permit the petitioner

to inspect his records pursuant to the

Illinois statute. In order to decide this

issue it is necessary first to determine

what standards are applicable under the

Statute. Once the proper standards are

defined, the Court can determine whether

the petitioner has adduced sufficient

evidence to warrant granting of the relief

requested.

The Illinois statute which governs the

impounding of adoption files states as

follows:

Upon motion of any party to an

adoption proceeding the Court

-68-

shall, or upon the Court's own

motion, the Court may order that

the file relating to such pro-

ceeding shall be impounded by

the Clerk of the court and shall

be opened for examination only

upon specific order of the court,

which order shall name the per-

son or persons who are to be

permitted to examine such file.

Certified copies of all papers

and documents contained in any

file so impounded shall be made

only on like order. I11l. Rev.

Stat. Ch., §1522 (1977).

A companion statute, Ill. Rev. Stat.

Ch. 111-1/2, §73-17(2)(a) (1977), provides

that after the decree of adoption is en-

tered:

....the original certificate and

the evidence of adoption, pater-

nity, legitimation, or sex change

shall not be subject to inspec-

tion or certification except upon

order of the Circuit Court or as

provided by regulation.

Pursuant to this statute the Presiding

Judge of the County Division of the Cir-

cuit Court of Cook County has entered a

general order impounding all adoption files

-69-

upon entry of a final decree. The sta-

tute permits opening impounded files

"upon specific order of the court”, but

is silent regarding the circumstances

under which such an order is to be entered.

However, since the legislature specifi-

cally provided that a court order is re-

quired to open impounded files, it is

clear that the legislature intended that

judicial discretion be utilized and that

such files not be opened unless the court

is satisfied that the rights of all inter-

ested parties are adequately protected

and their best interests would be served

thereby. While the statute does not ex-

pressly require a showing of "good cause"

as do statutes in certain states (see,

e.g., New York Dom. Rel. L§114), the court

may in the exercise of sound judicial dis-

cretion require establishment of "good

-704

cause” in order to ensure tht the legisla-

ture's concern for the rights of all par-

ties be carried out. If the legislature

had intended impounded files to be opened

merely upon request, there would have been

no necessity for judicial supervision. A

purely administrative procedure would have

sufficed.

The pivotal question which faces this

court, then, is what constitutes "good

cause" for opening impounded adoption files

for inspection by an adult adoptee. It

is clear that a determination that "good

cause’ has been shown depends upon the

circumstances of each individual case. In

Re Estate of Frick, 26 I1l. App.2d 56, 167

N.E.2d 266 (1960). It is also clear that

a showing of "good cause" requires that

the party charged with the burden of per-

suasion cross a certain threshold, e.g.

aFle

establish "some cogent reason, such as

fraud, accident, mistake, or collusion,

generally recognized as an equitable

ground for setting aside an order."

- Chicago City Bank and Trust Co. v. Johnson,

293 Ill. App. 564, 571, 13 N.E.2d 191,

195 (1938). However, not any "cogent

reason" is always sufficient. Where the

rights of other parties are involved, a

good reason for undertaking a particular

action may not constitute "good cause" in

a legal sense. Smith v. Ladage, 397 I1l.

336, 74 N.E.2d 497 (1947).

There are no Illinois decision which

define "good cause" in relation to the

opening of adoption records. However,

other states have dealt with this issue

and those decisions are helpful in this

case. A number of cases have arisen under

the New York statute (Dom. Rel. L. §114).

Ps by

None of these decisions have permitted

the examination of adoption files upon a

bare showing of the petitioner's desire

to know his background with no special

considerations. Access to medical records

and related matters has been granted with

the deletion of the names of the birth

parents and other non-pertinent informa-

tion. The need for medical information

to preduct possible genetic problems was

held to be good cause for release of such

information alone, but not for release of

personal information regarding the birth

parents. Chattman v. Bennett, 57 A.D.2d

618, 393 N.Y.S.2d 768 (1977).

This cases in which the adoption files

were opened without limitations present

factual situations distinguishable from

the instant case and which are particular-

ly illustrative. In Matter of Ann Carol S.,

oF %s

Surrogate Court of Bronx Co., N.Y.L.J.,

August 13, 1974, P.12, Col. 6, the peti-

tioner presented expert testimony which

showed that the lack of knowledge re-

garding her birth parents had ha- a pos-

sible “adverse impact on (her) social

adjustment". The court stated that "mere

curiosity" was not good cause, but that

the court would weigh the benefit to the

petitioner against any possible adverse

impact upon any other party. The file

was opened in this case because so little

information was contained therein no ad-

verse impact was likely to occur.

The Queen's County, N.Y., Surrogate

Court released information concerning the

petitioner's birth parents after they had

consented to its release, but only upon a

further demonstration that the petitioner

was suffering from a severe psychological

then

disorder and needed the information for

his rehabilitation. In addition there was

expert testimony that the petitioner was

prepared to deal with any problems which

might arise upon his obtaining the infor-

mation. In Re Anonymous, N.Y.L.J. Novem-

ber 25, 1977, P. 16, Col. 3T.

An unpublished opinion by the Surro-

gate Court of Richmond County, N.Y., In

The Matter of the Application of B. is per-

haps even more closely related to the

instant case. The petitioner is that case

had originally sought access to her adop-

tion records on the grounds that "it was

her birthright to know the identity of

her natural parents". Her original peti-

tion was denied but her subsequent motion

to reopen the proceeding to offer addi-

tional proof was granted. Upon rehearing

the petitioner produced expert testimony

a 7B in

that her "emotional health would be im-

proved by the receipt of the information

she sought to obtain from the sealed

records". Upon this showing the court

ordered the records opened.

Analysis of the cases cited above and

of the facts of the present case indicates

that the determination of "good cause" in-

volves the balancing of three variables:

1) the type of information sought, 2)

the reason for seeking the information,

and 3) the risk of harm to other parties.

In order to determine whether good cause

has been shown it is necessary to deter-

mine these variables and balance them

against each other. A showing of psycho-

logical need will not in all instances

outweight the risk of possible harm to

others. A showing that little or no risk

is present may mean that less grave rea-

é76%

sons for seeking information may suffice.

A request for only a limited amount of

information may overcome virtually all ob-

jections. The need for this balancing

process was recognized by the New Jersey

Superior Court in Mills v. Atlantic City

Department of Vital S _atistics, 148 N.J.

Super. 302, 372, A2d 646 (1977), which was

cited in the Memorandum Opinion of Septem-

ber 13, 1978, at 6. The Mills Court stated

that medical, hereditary, or ethnic back-

ground information should be made avail-

able on request, unless there was some

compelling reason not to reveal the infor-

mation. The Mills Court was convinced as

a result of expert testimony and the testi-

mony of adoptees that there are instances

when the overwhelmin drive to know is

such a compelling psychological need that

under those circumstances it may constitute

atte

good cause. Even in that situation the

| compelling psychological need must be

balanced against the rights of the natural

parents.

"Good cause” is not a static concept

which is amenable to a precise and rigid

definition. There is a fluidity inherent

in the concept which must respond to the

facts and circumstances in each individual

case. "Good cause" represents the minimal

showing necessary to induce the court to

grant the relief requested, and that mini-

mal showing is established in this case

by balancing the three variables mentioned

above.

THE EVIDENCE

Petitioner is seeking permission to

examine all court records regarding his

adoption and his original birth records.

Thus he is seeking all information which

Jat

is within the jurisdiction of this court.

He has testified that he desires a reunion

with his birth parents, if they so desire,

and that he will not be satisfied unless

the denial of a reunion comes from his

birth parents rather than the court.

As the reason for his seeking access

to this information, Petitioner has testi-

fied to a very real feeling that the infor-

mation is "information which pertains to

me as a person". (Tr. at 22.) While he

testified to an emotional need for the in-

formation sought, he denied that there was

any psychological therapeutic need for

this information. Thus, while it is cer-

tainly inaccurate to characterize peti-

tioner's feelings as "simply" a desire to

know, it is equally clear that the need

for the information is not necessary for

psychotherapeutic reasons to insure his

a,

functioning as a normal, well-adjusted

human being.

Balanced against the foregoing factual

situation are the rights of other parties

to the original adoption proceeding. Al-

though the petitioner is now a legally

emancipated person, the opinion of the

adoptive parents should be a factor to be

considered by the court in weighing all

necessary and helpful eivdence. In this

case the adoptive father is deceased and

the adoptive mother testified to her con-

sent to, and indeed support of, her son's

efforts to learn about his birth parents.

The petitioner has made the decision

that he wishes to know more about his bio-

logical heritage. In the initial meioran-

dum opinion this court adopted the position

that an adult should be given the dignity

of making this decision. This position

-80-

is certainly applicable to this petitioner,

who impressed the court as an intelligent

and thoughtful person. He needs no pro-

tection from the court as to the unknown

elements related to his request.

Finally this court must consider the

rights of the birth parents, who are not

before the court in this proceeding. To

determine the identity and whereabouts of

the birth parents and to ascertain their

feelings regarding petitioner's request

would require a search by, or under the

direction of the court, based on the infor-

mation in the file. The petitioner has

not shown good cause to warrant the court's

undertaking of such a search.

While petitioner has testified convin-

cingly to his personal feelings regarding

the missing information in his life, he

has adduced no other evidence directly

-81-

relating to the issue of good cause. The

witnesses who testified on his behalf

spoke in general terms of the relative

successes of other adult adoptees who have

searched for their birth parents, but such

general information, while certainly en-

- lightening and informative to the court,

has very limited relevance to the issue

of good cause in this specific case.

Petitioner's adoptive mother and sister

testified with much compassion and empathy

in support of petitioner's desire to learn

of his biological heritage, but their

testimony, while adding breadth and depth

to the testimony of petitioner, did not

demonstrate the good cause required.

In summary the petitioner has taken

the position that an adult who had been

adopted is entitled to examine the sealed

court record and the sealed original birth

-82-

record. This position fails to traverse

the minimal threshold required by the

statute. Although the desire to know and

the yearnings of the petitioner are res-

pected by the court, they are not suffi-

cient to overcome the statutory lLimita-

tions.

Sound judicial discretion requires

that the court balance the interests of

all parties. Petitioner's desire to know

this information, as expressed in the

testimony herein, is simply inadequate

when balanced against the potential in-

fringement of the rights of other parties.

Therefore, petitioner's petition to

examine the court file and birth records

pertaining to his adoption is denied and

the petition is dismissed.

. ENTER:

Judge Joseph Schneider

L84~