adoption records

Marie A. Failinger mfailing at PIPER.HAMLINE.EDU
Wed Feb 2 18:19:34 PST 2000

I would quite agree (and I apologize if I wasn't clear that I was
responding to the surprise about the statistical correlation, not the
normative question).  Assuming that even one unnecessary (because
"forced" by non-consensual open adoption rule) abortion is an
unquantifiable harm, your point nicely illuminates the trouble we have
when we think of law-making as a choice between two rules, A and not-A:
we spend lots of time fighting over a rule that
may make the difference in only a few lives, when devoting those resources
to creating a different sort of system altogether (e.g., a system in which
mothers were supported or encouraged in their decision to bear and keep
their children) would save many more.

The rule approach seems to be "cheaper" than the resources solution, but
in fact it is not, when
all costs of both options are considered and the value of life and
suffering are weighed.  Of course, some issues indeed ARE either-or; there
is no creative alternative to produce a better result.  But this doesn't
seem to me to be one of them.

On Mon, 31 Jan 2000, William Funk wrote:

>   My point was only that in a system where records are
> contrary to the wishes of the birth mother, compared to a system where
> the birth mother has a choice of consenting or not, there is some reason
> for some potential birth mothers to abort rather than to carry to term
> for adoption.  I do not maintain it would be a deciding factor very
> often.  And I do not maintain that a concern for such a result should
> necessarily override the desire for open records as a public policy
> matter.  I do, however, believe it is a relevant consideration in
> weighing the competing interests in determining what is correct public
> policy.
> Bill Funk
> Lewis & Clark Law School

Marie A. Failinger
Hamline University School of Law
mfailing at

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