In the last few minutes of the 2017 legislative session, the New York State Senate passed a badly compromised not-an-OBC access bill that is a near identical twin to Minnesota’s own badly compromised 1977 law. It is a terrible bill, one that says that it is “related to adoptee rights” but actually does nothing substantive toward those rights. Rather, it does everything to advance the rights of others. I am urging all adoptees, all adoptee rights organizations, and all of our allies to contact Governor Andrew Cuomo to request a veto of A5036B.
In the meantime, with questions about the bill and its impact on adoptees, I thought I’d set out what the bill does. These are, of course, my interpretations of the current bill’s language and interpretations of the bill may change. For a concise one-sentence elevator speech of it all, consider this from Bastard Nation:
The bill maintains the state’s sealed records system by creating a confusing, drawn-out OBC application process, mandating birthparent consent to release of the OBC, redaction of identifying information upon birthparent request, and a cumbersome judicial procedure in which judges determine if release of the OBC is “detrimental” to a birthparent. No fiscal note was attached.
My Own Skinny on A5036B
The bill (text here) is not law and, as of this writing, has not yet been delivered to Governor Cuomo, who will have 10 days to consider it. But if signed, these are answers to expected or already asked questions.
Who may request the release of an original birth certificate under this bill?
An adopted person who is at least 18 years of age.
Where do you apply?
Either to the New York Supreme Court or to the court in which the order of adoption was made.
What is the cost to apply?
Not specified. No funds have been allocated through the bill and no fiscal note was attached or provided.
What happens once I apply?
Upon receipt of an application, the court refers the matter to the New York Department of Health. The court provides the department with “identifying information” about the birth parent(s), some of it likely derived from the state’s adoption registry. The court may also require additional “terms and conditions” that the department must follow in searching for and contacting a birthparent.
What does the department of health then do?
The department must “make a reasonable and good faith effort” to notify and advise birthparents that the adoptee has requested his or her original birth certificate.
How long does the department of health have to notify birth parents?
The department has 120 days to find and notify any listed birthparent.
What happens if a birth parent is found and notified?
If a birthparent is found, he or she is provided a “confirmation” form by the department. The parent may complete the form and either a) request “continued confidentiality” of identifying information or 2) consent to the release of identifying information.
What happens if a birth parent consents to release of identifying information?
If consent is obtained in writing from a birth parent, the department notifies the court. The court must then order the release of a certified copy of the long-form original birth certificate, though it may be redacted if another listed parent has requested continued anonymity. If the original birth certificate is not available, then the court must order the release of identifying information.
How long does it take to release the original birth certificate once the department notifies a birth parent?
This is unclear. Once the department notifies and advises a birth parent, there is no specific time period required for a parent to respond. There is also no specific timeframe for the department to report back to the court or for the court to issue an order for release of the original birth certificate or identifying information.
What happens if a birth parent requests “continued confidentiality?”
If a birth parent requests continued confidentiality, it acts as a redaction request. The court will then order the release of the OBC with identifying information removed or blacked out for the objecting parent. The court is also required to issue an order along with the redacted OBC and to file the redacted copy of the OBC with the court.
How is identifying information defined?
The bill is vague and does not specifically define identifying information. Rather, the bill specifies that, in situations where identifying information is redacted, only non-identifying information will be provided in the blacked out copy of the original birth certificate. Under the definition of non-identifying information cited by the bill, this will likely mean that the parent’s name, address, and place of birth will be redacted, along with any other potentially identifying information. It will likely mean that an adoptee’s surname, if listed on the original birth certificate, would also be blacked out.
What if there are two parents listed and one parent wants redaction and the other parent agrees to release the OBC without redaction?
The court has discretion whether to release identifying information for a parent who does not agree to the release of the original birth certificate and wants “continued confidentiality.” In such cases, the court is required to issue an order along with the original birth certificate, whether redacted or not.
Can the court refuse to release an original birth certificate?
No, not under the specific provisions of this bill. If a birthparent objects to release by filing a “request for continued confidentiality” then the only option given to the court is to remove that parent’s identifying information on the original birth certificate. Presumably, though, in cases where an OBC is unavailable, no identifying information is released and the adoptee will likely receive nothing. It is not known how common it is for an OBC to be “unavailable.”
Can my own name on the birth certificate be redacted?
While the bill does not define specifically what constitutes identifying information, it is likely that an adoptee’s surname will be redacted if it is the same as a parent who has requested “continued confidentiality.” It is entirely possible that the surname is redacted even if it is not the same but the other listed parent requests redaction by indicating “continued confidentiality.”
What happens if a birthparent does nothing; i.e., does not respond to the department’s notification?
If a birth parent fails to respond to the department’s notification, the court has “discretion” to order the release of the original birth certificate. Generally in such cases, the bill requires release of an unredacted copy unless the release would be “clearly detrimental to the welfare of the birth parents.” The court must also find good cause exists not to release an unredacted copy and, in determining good cause, the court must consider “evidence concerning the wishes of the birth parent regarding confidentiality as expressed at the time of the adoption or surrender.” Presumably, if such evidence exists, the court has ultimate discretion to order redaction of the original birth certificate for that parent.
What happens if the department cannot find a birth parent?
The bill does not specifically address a parent who is not found but instead uses the language “unable to notify a birthparent.” Though vague, this language could include a birthparent who cannot be found or a birthparent who is deceased. In such cases, the court has “discretion” to order the release of the original birth certificate. The court uses the same procedure and standard for parents who do not respond to the department’s notification.
What if the department determines that a birth parent is deceased?
See previous answer.
Can a birthparent file a form requesting redaction of identifying information at any time?
Yes. Once the department develops the required “confirmation” form, a birth parent can file it at any time and request “continued confidentiality,” which leads to redaction of any identifying information.
Can I present evidence in court to convince the court to release the original birth certificate in cases where a birthparent is not found or does not respond to a notification?
This is not specified in the bill but it appears unlikely. Legal challenges may certainly arise under this specific bill.
Will the department of health charge me for searching for and notifying a birth parent?
This is not specified in the bill, and the legislature did not appropriate any funds to the department for the purpose of implementing the bill or for locating birthparents. Under the bill, however, a department’s search and notification process is intended solely to benefit birthparents, not adoptees. It would be inequitable if not punitive to charge adoptees for searches that they never requested and that are intended solely to address legislators’ concerns with alleged birthparent secrecy.
Can descendants of adoptees request an original birth certificate under this bill?
No. The bill does not give descendants of an adoptee any right to request and obtain the adoptee’s original birth certificate through this specific process. Provisions to accomplish this were in earlier drafts of the bill but those provisions were removed during the legislative process.
Are there other provisions in the bill?
Yes. There is a provision for a contact preference form if a birthparent agrees to release the original birth certificate. There is also a provision for a medical history form if the birth parent agrees to release the OBC. Finally, the bill modifies the process birthparents have at the time of adoption or surrender to indicate whether they agree to release identifying information once an adoptee reaches the age of 18.
How is the bill being paid for?
This is entirely unclear, particularly when searches by government agencies are often time-consuming, expensive, and unreliable. The bill also requires the department of health to widely publicize the new provisions and to call attention to New York’s adoption registry. No funds, however, have been allocated for these purposes.
When does the bill go into effect?
The bill takes effect on April 15, 2018, though the requirement to publicize the bill and to develop a birth parent “confirmation” form will occur earlier.
Finally, if you want to understand the context of the bill and why New York feels it is necessary to maintain secrecy over adoptee identities, you may want to have a gander at this short video.
Thank you for this objective summary.
One of many things I worry about with this bill – the use of the word “confirmation” with respect to the disclosure veto. Depending on how the “confirmation” form is worded, I worry that a birth parent might think he or she is CONFIRMING that they are indeed the birth parent and not requesting eternal anonymity at all.
Another thing – the hospital where the adoptee was born is officially considered “identifying information”. The ages of the birth parents are considered “non-identifying information”. Given what happened in Ohio where the law SPECIFICALLY allowed redaction of the birth parent’s name and the redaction request form SPECIFICALLY mentioned that the birth parent’s name would be redacted and did not mention anything else – and Ohio Vital Records STILL redacted a whole bunch of other stuff -> I’m thinking New York Vital Records will redact whatever they want.
I still think some courts are going to take their time to retrieve the records from their archives and ignore the fact that the Registry already has them. I do not trust any judges in New York.
These are excellent clarifications and points. Thanks.
As long as their is profit to be made and a desire for another’s child, bureaucracies will establish and enforce the rules while original and always mother/father will have virtually no say.
Be clear – nothing short of a revolution in the minds of people will alter this evil construct.
I’ve been criticizing versions of this bill for years. Legislators rarely listen to what constituents have to say, unfortunately.
Even if someone were so moronic as to approve of this anti-adoptee bill, it is fatally flawed.
N.Y.C. ADMIN. CODE §17-167(c) would need to be amended in any NYS open records bill. NYC has its own health department and its own laws governing birth certificate access, birth certificate laws that are at the moment about the same as those that govern upstaters. This bill create a different system of access for upstaters and downstaters.
“When a new birth record is made the department shall substitute such new record for the birth record then on file. The department shall place the original birth record and the proof, notification and papers pertaining to the new birth record under seal. Seals shall not be broken except by order of a court of competent jurisdiction. Thereafter when a certified copy of the certificate of birth of such a person is issued, it shall be a copy of the new certificate of birth, except when an order of a court of competent jurisdiction shall require the issuance of a copy of the original certificate of birth and provided further however, that information contained in the original certificate of birth shall be divulged to the state commissioner of health pursuant to section forty-one hundred thirty-eight-c or forty-one hundred thirty-eight-d of the public health law.”
I’ve always heard that the STATE DOH has the original birth records of NYC adoptees, not the CITY DOH. Does anyone know if that is indeed the case?
Perhaps, though I’ve never heard that. Regardless, even if NYC birth certificates are stored in upstate NY by the NYSDOH, it’s still the NYC Admin Law that governs their release.
Aside from that, the NYC birth index had been available for decades (perhaps still is), permitting adoptees born in the five boroughs to learn their name at birth – which of course never had any ill effect. http://www.firstmotherforum.com/2016/05/how-to-find-your-new-york-city-original.html
The Birth Index books were removed from the NYPL last year along with the Death Index. There are microfilms available from LDS Family History Centers but they only go up to 1965 and LDS is discontinuing its microfilm distribution in September. Still available on Vital Search but again only through 1965. The books covered through 1982.
Still a lot more than upstate adoptees can access, and still something that undermines arguments in favor of this rotten bill!
Other things I might’ve mentioned in the letter to Cuomo:
• the law governing access to adoptees’ original birth certificate has always been the same law governing anyone’s access to original birth certificates made for any reason. If an original birth certificate was amended and sealed due to subsequent adjudication of parentage, if a person changed their name, etc. Such law has never permitted judges to contact other people to determine whether or not to unseal the original.
• the bill refers to the “original long form birth certificate” If someone had an original birth certificate that was sealed due to subsequent adjudication of parentage, and a new birth certificate was created with the father’s name, and then that person was put up for adoption and that amended birth certificate with the father’s name was sealed and a second amended birth certificate was created with the adoptive parents’ names, then in that case the adoptee would want to unseal the first amended birth certificate and not the original birth certificate. Given that the law does not reference amended birth certificates the law that would apply is the old one!
• the bill applies to both open adoptions and closed adoptions, creating the absurd situation in which the birthparents WHO THE ADOPTEE KNOWS PERSONALLY are contacted for permission.
• the bill applies to both infant adoptions and adoptions of children and adults. A person could be adopted at age nineteen (and of course know who his or her birthparents were), and this bill would mean that adoptee would automatically have the right to access the original birth certificate – only after the DOH made a good faith effort to contact the birthparents, etc.
• the bill applies to adoptions in cases of consensual relinquishments and to cases of involuntary termination of parental rights. As such, an adoptee who had been severely, chronically, abused or neglected, even sexually abused, by the birthparents would still need the birthparents’ permission to obtain access to the original birth certificate. That is, obviously, perverse. I’d told that to NYS Legislators in the past, who professed horror, yet they never changed the bill. This bill takes away rights from adoptees while empowering, among others, pedophiles.
These are all excellent points. The struggle to create a letter that would capture the issue—and do so in a way that a governor or aides would understand easily and rapidly— was fairly difficult. On top of that we needed to assure that we would get broad support from various organizations without watering down a compelling message. We were at times deep in the weeds of what the legislation will do, as well as deep in the weeds of how the bill had developed over time.
In the end I’m pretty proud of the letter, drafted rapidly and under tremendous pressure to satisfy a number of demands and issues. I’ll be the first to acknowledge that we left many salient points in the scraps of our edits and did not highlight some of the things you raise here (e.g., the idea of contacting parents who are already known, which is absurd).
I would love for you or anyone else to take these points and write separately to Governor Cuomo, especially if you are a New York constituent.
And thanks much for an obviously positive and deep investment in this issue.
Oh, it’s a good letter! Just sort of wish BN at least had contacted me, a former member of BN’s Legislative Committee (actually I’m still listed on it! http://bastards.org/bastard-nation-executive-committee/ ) who lives five minutes outside of Albany!
I expect I will write Cuomo a letter of my own, but I know from experience he does not listen. Aside from that, I’m one of the people he chose to screw over when he shut down the Moreland Commission to Investigate Public Corruption! I’d been assigned a case number by them, then Cuomo shut it down, and my case of course died with the commission.
There are a lot of things that the sponsor(s) have told us won’t happen but the bill does not make that clear. In my case, I know who both my parents were and both are deceased. As far as I know, only my mother’s name appears on my OBC. I had a good relationship with my mother from 2009 until her death in 2015. I have a copy of her death certificate. Her obituary lists me as her daughter. I could easily get an affidavit from her husband (the rabbi) attesting to the relationship I have with the family.
A strict reading of the bill says that if no waiver is found (and I know she didn’t file one) the court will direct the DOH to commence a search for her. I spoke to David Weprin about this and he assured me that’s not what the bill says. If she’s deceased, you get your OBC. He’s said this a number of times.
Going by what DOH/Vital Records has done in other states (Ohio, Illinois, Colorado) in “interpreting” their new laws, I’m going to guess that the NY DOH will not take any steps, however logical, that conflict with the letter of the law. Hopefully, Gov. Cuomo will be aghast that such a bill has made it to his desk and will veto accordingly.
If it’s not in the bill, and it’s not in the Sponsor’s Memo, then it’s not something the sponsor can promise. He presumably knows that.
Yes – the idea of needing permission from one’s abusers is a big horrible deal.
Also – where the person was adopted by a step parent, those records are sealed as well. So who do they try to contact? The ex-spouse or deceased spouse of the person who RAISED the adoptee? Do they need permission from the person whose name appears on both the original and the amended?
“Do they need permission from the person whose name appears on both the original and the amended?” Seemingly, if someone was a parent named on both the sealed original and the amended birth certificate, they would still be legally required to contact that person.
This calls to mind another flaw – in many cases where people were put up for adoption by a married woman who’d had an extramarital affair the original birth certificates would name not the biological father but the putative father, i.e. her husband. Thus the DOH would be contacting men who had no biological relationship with the adoptee for their permission to release the original birth certificate of their wife’s (or ex-wife’s) extramarital offspring. Absurd!
Yup. Not to mention the case where the unmarried mother named the wrong man, either deliberately or unknowingly. If his name ended up on the OBC, how does that work?
Then there are the cases where the mother/parents used an alias. Does the adoption file include the mother’s actual name? Who will the DOH be searching for? Where the adoptee knows the ACTUAL name (DNA is really good for this 🙂 ) can that be taken into consideration? If I tell the court that my mother was Jane Collins and she’s deceased but the name she used on my OBC was Jane Johnson – what then?
Also wondering how many adoptees will find out they were never legally adopted.
This is very helpful. Thank you. I received the message from several adoption advocacy groups to support legislation, A06821A/S05169A that better addresses the issue at hand and are in keeping with current research and practice in adoption. I advocated for this with our Assemblymember. She did some investigating on A5036B vs. A06821A and found they were introduced by the same representative. She said often bills are introduced with all their imperfections. Experts weigh in and a new/improved bill is introduced. And yet, in this case, the original imperfect bill was approved. Can you elaborate on the differences and improvements between the two bills? Are adoption advocates still supporting A06821A?
I am writing to Governor Cuomo and want a better understanding of what to advocate for beyond vetoing A5036B. I appreciate your insight. Many thanks!
Thanks, Amy. Yes, we are specifically supporting the companion bills known as the Adoptee Bill of Rights. Those are S5169A/A6821A, and they are still active during this two-year session. That is what thousands of people through various petitions—and more than 20 adoptee rights and adoption reform organizations—are pursuing in addition to the veto. Our letter on this lays the issues out, and I encourage you to sign on to that letter.
The difference between the two bills is night and day. This bad bill involves a complex and expensive process wholly unnecessary and unwanted. The other genuine adoptee rights bills are simple and reflect what should happen in all states: apply for an OBC, pay the nominal fee required, and you receive the OBC in the mail within a couple of weeks.
Thanks so much, Greg. I will read, digest, and advocate.
A follow-up, Greg. And pardon my weak grasp of civics procedure.
If the refined companion bills (S5169A/A6821A), The Adoptee Bill of Rights, is still active for this 2 year session, would passing that replace the original bad bill just passed as long as the Governor doesn’t sign it into law? I want to make sure I understand the turf as I write to the Governor, Assemblymember, and Senator. THANKS!
Yes, a veto would simply send the bad bill back to the assembly and, realistically, it would be dead. Presumably, given support for the clean bills—and strong advocacy by at least two current cosponsors—there would be momentum for passing that in the assembly. But I’m far from an expert on New York legislative politics. For that I rely on talking to people there on the ground, and even they tell me they are often flabbergasted by what happens. But generally we could presume a veto would result in the clean bills taking over in priority.
A little recent history.
In the 2013-2014 session we had A909 which was a clean bill – unrestricted access with a contact preference. By June of 2014, we had about 110 sponsors but Helene Weinstein would not let it out of the Rules Committee. We were told to expect an amendment and figured they’d try for a disclosure veto. Instead, we got something that looked like A5036. A complete gut of a clean bill, turning it into Search and Consent. People scrambled to tell the sponsors to remove their support. The bill went nowhere and we all breathed a sigh of relief.
In the 2015-2016 session, the Search and Consent bill got reintroduced along with something that looked like the original A909. Nothing moved until June 2015 when the Search and Consent bill got to the Assembly floor and passed. The Senate version got to the Rules Committee but not to the floor. In June 2016, same thing. Passed Assembly, not voted on by the Senate.
So those two visions of “Adoptee Rights” have been around for a while.
The current clean bill is very very simple. The original clean bill A909 (although similar versions have been around for 15+ years) had more “stuff” in it. A6821 is simply “Adoptee requests OBC from the DOH and the DOH has 45 days to produce it.” Done.
Why does the government need to be involved at all? Leave it closed on both parts until the child turns 18. Then release the information to an adoption search entity and if both sides are searching viola.
That’s called a mutual consent registry. New York already has one, and registries are woefully inefficient and expensive. In other words, they don’t work.
Releasing personal information to a for-profit search entity would not be a good idea, nor would it be treating adoptees like other people, nor do all adoptees who want to have their original birth certificate necessarily want to contact their biological parents. As Greg Luce notes, the passive mutual consent registry run by New York State is notoriously bad. States and countries that make original birth certificates available to adoptees at a certain age have experienced no problems; for all states to do the same is a rather simple, straightforward solution – if only the tendency of legislators to stick with the status quo or create more convoluted legislation were not so strong!
To Bari Berger:
New York State’s Mutual Consent Registry, just like any other state’s registry, is for reunion only. Registries do not address the problem at hand, which is adoptees’ civil and human right to our own medical record of live birth. That is the point of our activism. Adoptees are denied civil rights that non-adopted people have.
Bari Berger: you have your birth certificate, we want ours!