Over the last few weeks I have modified my OBC maps and state listings, primarily as a result of a book project that requires a full review of adoptee rights in all fifty states and the District of Columbia. As a result, I have now removed Hawaii from the unrestricted OBC rights category and have reclassified it as a state that has compromised rights. To put it simply, it has moved from green to yellow.
This was not a quick decision to make, and I expect significant blowback for making it. But I made the decision for the simple reason that it it is misleading to describe Hawaii as unrestricted. Hawaii does not treat all adult Hawaiian-born adopted people equally. Here’s how.
Court Records vs. Vital Records
Hawaii is different than nearly every other state in how it handles adult adopted peoples’ requests for copies of their own original birth certificates (South Dakota is also an exception and is similar to Hawaii’s approach). Rather than the state’s department of health releasing a copy of the original birth record directly to to the adoptee, Hawaii instead provides copies of court records from the state circuit court that finalized the adoption.
Court records, however, are only available if there is an actual court file. Critically, this means that, if an adoptee is born in Hawaii but adopted in a different state—let’s say, California—the adopted person does not have an court file in Hawaii. Rather, the court case and all of the court records are in the state where the adoption was finalized—in this case California.
Hawaii’s new law, which went into effect in 2016, states in part that:
The [court] seal shall not be broken and the records shall not be inspected by any person, including the parties to the proceedings, except:
* * *
(2) After the adopted individual attains the age of eighteen and upon submission to the family court of a written request for inspection by the adopted individual or the adoptive parents;
This is great for any adopted person who was adopted in Hawaii, including those who were born in other states, even restricted states. Current Hawaiian law gives those adoptees unfettered access to all the court records in the case file—but so long as there is a case file.
A person born in Hawaii but adopted in another state, however, has no adoption case in Hawaii’s family court system, and the adopted person obviously has no recourse to get those records—they don’t exist in Hawaii. Family court officials confirmed this for me and further told me that, if the court does not have a court record for the adoptee, there is no information the court has or can provide. “There is nothing we can do,” said one court official, because an adopted person born in Hawaii but not adopted in the state is not covered by the new law. He or she is treated differently from all other adoptees who were born and adopted in the state. That’s not equality, and it’s primarily why I’m downgrading Hawaii to a compromised state.
Flowchart: How Hawaiian Law Works Today
Plus One More Issue
As the flowchart shows, Hawaii also has another more nuanced problem: some court files may not have a copy of the adoptee’s original birth certificate. Though I’m told this is unusual, it has been confirmed. While the new law is silent on what should happen in such cases, family court officials told me that they often work to “help” the adoptee get the original birth certificate from the department of health. That’s great to hear, but it remains legally problematic. Such “help” to get the OBC depends entirely on the discretion of court and agency officials in allowing the release of the OBC from the state agency. Current law in Hawaii maintains the OBC under seal and available only by court order, and Hawaii’s new law did not change this, nor does it require that the adoptee receive an OBC from the department of health if a copy of the OBC is not already in the family court adoption file. That’s a big issue, and it also needs to be fixed.
An Easy Fix?
Legislators and advocates can fix these issues and return Hawaii to one of ten (now nine) states with unrestricted OBC rights for adult adoptees. That fix could be relatively simple and would need to involve making the OBC directly available upon request from the state department of health, as all unrestricted states do.
I’ve set out a draft solution below. In addition, I’ve added a provision that extends OBC rights to descendants to obtain the OBC of a deceased adoptee. This increasingly makes sense for legislative efforts on this issue.
I don’t apologize for demoting Hawaii, and I also don’t feel good about it, especially having miscategorized it for more than three years now (FWIW, I was not involved in adoptee rights work at the time the bill was enacted). The change, however, is the right thing to do. Unfortunately, in doing so, Hawaii is now listed as one of 22 states today that have compromised OBC rights for adult adopted people.
Potential Legislative Change
SECTION 1. Section 338-17.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
“(b) When a new certificate of birth is established under this section, it shall be substituted for the original certificate of birth. The new certificate shall not be marked as amended and shall in no way reveal the original language changed by any amendment. Thereafter, the original certificate and the evidence supporting the preparation of the new certificate shall be sealed and filed. The sealed documents shall be opened only by an order of a court of record or, for those documents amended pursuant to subsections (a)(3) or (a)(4), by request of the birth registrant.”
SECTION 2. Section 338-17.7, Hawaii Revised Statutes, is amended by adding a new subsection (e) as follows:
“(e) If a new certificate of birth has been established under subsection (a)(3) and the birth registrant is deceased, the spouse or descendant of the birth registrant may receive a copy of the original certificate, so long as the spouse or descendant is at least 18 years of age.”