Mona Charen

What 'Measure 58'
would do

THE WOMAN IS NOW IN HER MID-40S. Twenty years ago, she was raped, became pregnant and decided to put the baby up for adoption. Her daughter is now 20, and using the methods available to adoptees -- help from her parents, the Internet and other sources -- she was able to make contact with her birth mother.

Both women were happy to make the contact, at first. "This was still a baby that I carried for nine months," the birth mother told the Associated Press. "I had the same longing that any mother has." But after a couple of meetings, the daughter announced that she would like to search for her biological father as well. At that, the birth mother retreated, grateful that nothing in the law required her to face or even hear about her rapist again.

But if Measure 58, a ballot initiative in the state of Oregon, passes on Nov. 3, birth mothers like the one described above will have no choice. All birth records will be opened to adoptees when they reach the age of 21.

Advocates are framing this as a rights cause. Why should adoptees not have the same rights to their genetic history that everyone else enjoys? By what right does the state decree that adoptees should remain in the dark about potentially life-threatening genes they may carry or interesting information about their ethnicity?

Everyone with a cause in America casts it in terms of "rights" eventually. "Rights talk," as Professor Mary Ann Glendon of Harvard has pointed out, is a way of avoiding debate. If you have a right to something, there is nothing to argue about. There is no room for competing considerations.

When it came to the civil rights of black Americans, rights talk was just and necessary. But its later offshoots, like the "rights" of women, homosexuals, the disabled and now adoptees, are terribly misconceived. All of the questions these groups would foreclose are far better sorted out as matters of policy than pre-empted as matters of rights.

Does it serve some public purpose to keep adoption records sealed, even to the adoptee himself?

Yes. In the first place, there is a fairness argument. It's one thing to propose openness from now on. But this measure is retroactive. The women who placed children for adoption all those years ago were promised that they could do so completely confidentially. To change the rules on them now is a serious breach of contract.

The lady who was raped has excellent reasons to cling to privacy. So does a woman who has since married and had more children without revealing the existence of the adopted child to her family.

The cases where an adoptee seeking contact would be unwelcome to the birth mother are limited only by one's imagination. Most states have honored the birth parents' needs and wishes by establishing registries. Those who are not averse to being contacted register with the state, and if all parties are amenable, identifying information is exchanged. Oregon's law would disdain the wishes of birth parents.

Most adoption agencies have also sought to supply adoptees with as much medical information as they are able to obtain. And it is almost always possible, through an intermediary, to obtain medical data even from birth parents who do not wish to be contacted.

Advocates of total openness assume that confidentiality was an artifact of a bygone era when illegitimacy was shamed. Since we no longer attach stigma to unwed childbearing, they say, why make adoptees feel that there was something wrong with the way they came into the world?

Whether or not shame attaches to the birth mother's decision, she is entitled to privacy. Surely the heroic decision to bear a child and place him for adoption is entitled to the same protection in law that the decision to abort is granted. To change the rules for one and not the other is to weight the adoption decision unfairly and to tilt public policy away from adoption.

The desire to meet one's birth parents is totally human and understandable. But most adoptees also know that there are other considerations (only 6 percent search). They know that to frame this argument as a matter of "rights" is to oversimplify a very complex matter.