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.