The other day I mentioned accepting nominations for the worst legislators for adoptee rights. I immediately received a few nominations, including Texas Senator Donna Campbell. The request then devolved slightly to include the worst states for adoptee rights, and New York was immediately nominated. Bingo.
Based on the 50+ state review of OBC laws, it is easy to conclude that New York is one of the most restrictive states in the country when it comes to adult adoptee access to an original birth certificate. Not only does the state purport to seal adoption records and OBCs forever, but it also relies upon an archaic, punitive, and expensive court process to access anything remotely identifying, with an added requirement to notify nearly everyone in your family if you seek an OBC. This includes adoptive parents, biological parents (or their appointed guardians), siblings, aunts, even spouses. Seriously. Just for requesting an original birth certificate, no matter when the birth, no matter the type of adoption.
If you want to understand how ridiculous it all is, here are two cases decided in the last year by New York courts. One involved an adoptee who was born in 1917 and was adopted by his stepfather. The other involved a young adult who was fourteen years old when he consented to his own adoption. Both involved requests for an original birth certificate and nothing else.
Judges denied both requests, and the cases symbolize how New York today has produced and enforced a law so punitive to adoptees that it has moved far beyond its own legitimacy and has easily entered the realm of farce.
A Rose is Not a Rose
In Re the Matter of Rose is not a typical adoptee rights case. I expect, however, that it may become more and more common as adoptees age and die— and then their children pursue a parent’s OBC. In Rose, the petitioner sought the OBC of his deceased adopted father so that his family could seek dual Italian-United States citizenship. Here’s how the appeals court summarized the case:
Petitioner seeks certified copies of his late father’s, the adoptee’s, original birth certificate so that he and his children can obtain Italian citizenship. Petitioner asserts that the adoptee would have been 96 years old at the time of the filing of the petition, that the adoptee has no siblings, and that the adoptee’s biological and adoptive parents are deceased.
Importantly, though, the adoptee’s mother was just that: the birth mother listed on both birth certificates. Her husband, the adoptee’s stepfather, was the only adoptive parent.
The trial court first denied the petition in 2014, stating that a legitimate interest in citizenship was insufficient to demonstrate good cause to unseal an OBC. Rose appealed. The appellate court first determined that Rose had in fact presented a prima facie showing of good cause to release the OBC. But the appellate court said he had not provided adequate notice of the petition to his mother (the adoptee’s widow, who was in her 90s), to his biological sister, or to the New York City Department of Health and Mental Hygiene, which held the vital records. The appeals court sent the case back to notify family members and the health department so that they could choose to participate in another court hearing.
When it came back again to Judge Rita Milla for hearing a few months ago, the petitioner’s elderly mother had since died and his sister had submitted a document that consented to release of the OBC. But the New York department of health objected to release, arguing that the department “has a vested interest in maintaining the strong policy of the State of New York to afford confidentiality to all parties to an adoption.”
And despite the appellate court stating earlier that Rose had shown a prima facie case of good cause, Judge Milla denied the petition again in April, essentially determining that privacy rights that had not existed in New York law in 1917 trumped legitimate personal rights and interests of an adoptee and his family in pursuing Italian citizenship today.
I’m scratching my head on this. Remember, the adoptee had been born more than 100 years ago, in 1917, when original birth certificates were not sealed (New York did not require sealing of OBCs until 1936). He was adopted by his stepfather. His birth mother, who died in 1939, is on both the original and the amended birth certificates. The birth father of the adoptee—whose name on the OBC could prove eligibility for Italian citizenship—was also long gone. Yet, because of New York’s draconian law, the court required the petitioner not only to notify his biological sister and mother, but it also extended the law to create alleged privacy rights to people born in the 19th century. As Judge Milla wrote:
Petitioner argues that ‘no person’s right of privacy or expectation of confidentiality will be invaded if this Petition is granted.’ Petitioner’s counsel argued at the hearing that Robert [the adoptee] would seek the same relief if he were alive today. At issue here, however, is not only the violation of [the adoptee’s] confidentiality but also that of Robert’s biological parents.
Again, I feel compelled to point out, these are biological parents born within a generation of the Civil War, at a time before most cities had electricity, before some states even existed, and before most states even had their own adoption law on the books. This is a case where the birth mom is the mom, who never relinquished her son and told the adoptee about his birth father and his Italian heritage. Still, at least in New York, it’s a no go.
In Re Kevin (“Mr. E.”)
If Rose represents a second generation of adoptee rights in New York, then In Re Matter of Kevin E. (knwon as “Mr. E.”) is decidedly first generation. As in, the adoptee was fourteen years old when he was adopted, knew his mother, and maintained a relationship with her. But an original birth certificate? Denied, despite the adoptee providing one of the most honest and legitimate requests for an OBC I’ve ever seen in a reported case:
[f]or the past ten years I have had an ongoing relationship with my biological mother . . . . I honestly just want a copy of my birth certificate for my file.
This was insufficient to show good cause to unseal the OBC, even though Mr. E.—now twenty-six years old— was “aware of his personal history” and was fourteen years old at the time he consented to his own adoption. Though Mr. E. did not provide proof of his mother’s consent, the court in a footnote said that would not have mattered:
There is no affidavit from Mr. E.’s biological mother confirming his claims regarding their relationship. However, even were such an affidavit presented, and even if the biological mother consented to the release of the original birth certificate, this would not affect the Court’s ruling because ‘[a] crucial aspect of the scheme of Domestic Relations Law § 114 is to leave the balancing of the interests of the natural parents, the adoptive parents, the adopted child, and society to the court system, and not to private parties. Parties may not circumvent the statutory scheme with their own private agreements.’
Taken together, the Rose and Mr. E. cases demonstrate the absurdity of a New York law that imposes extreme notification measures and requires an impossible standard to overcome. On the one hand, an adoptee’s family is denied access to a 100-year-old birth record that could provide valuable citizenship rights within the European Union. On the other, a twenty-six year old adult, adopted only twelve years earlier as a teenager, cannot obtain a basic part and proof of an identity he already knew. Period. Case closed. That’s the nutso world of New York adoptee rights.
And Legislators Think It’s Easy
Some New York legislators obviously disagree with my assessment and believe New York’s heavy-handed law works. They are either protecting people or fooling themselves. I recently came across a legislative video of Daniel O’Donnell, a seemingly progressive New York state legislator who opposes unrestricted OBC access. Worse, he actually believes that it is easy to get your OBC, like routine and cursory easy. This is exactly what he said about current New York state law:
The current law permits adoptees to get access to this information by going through surrogate’s court. I assisted a constituent, actually a next door neighbor of mine, who desperately wanted and needed this information, and it was granted in an almost cursory fashion.
I laughed out loud when I heard this. New York legislators are in denial or just plain ignorant if they believe it is a mere “cursory” matter to obtain an OBC in New York. It’s not. It’s an expensive, humiliating, and punishing system built on secrecy and a false notion of confidentiality.
Here’s the truth: we recently surveyed adoptees across the country. Of 101 New York adoptees who responded to our survey and reported that they had sought an OBC, four received the OBC. Four. That’s four percent. But of these four, three actually didn’t get an OBC: two received redacted OBCs and one OBC was disclosed not to the adoptee but to a Canadian Indian tribe. So, it was actually one person out of 101. One percent. One percent is not remotely close to cursory.
In our same survey, adoptees also revealed indirectly how bad New York law has become. Adoptees reported that they have moved on to do what any logical person would do: turn to DNA and its public registries. Because, while about 65 percent of adoptees nationally told us they have also turned to DNA, far more New York adoptees have done so: nearly 75 percent. More New York adoptees use DNA for information than actually seek an OBC through New York law.
Because if you are compelled by law to use a system that costs you thousands of dollars and typically ends in humiliation and denial, who wouldn’t choose instead to pay $99 and convert a swab of spit into actual disclosure and knowledge?
TAO - theadoptedones says
And in New York Law, regardless if you live in Alaska or any other state, to get an order of good cause for medical reasons you must get a letter from licensed in NY physician stating the need.
Gregory D. Luce says
Thanks, TAO. The link wouldn’t work for some reason so I’ll just add the link here, which goes to our New York OBC page on this site.
Gaye Tannenbaum says
I know of one case that was granted in order to give the adoptee dual citizenship rights for Hungary. In that case, the adoptee was petitioning and had an affidavit from his birthmother (by then deceased). Even though he prevailed, the judge went through a lot of explaining how the law was created to prevent release in all but the most compelling circumstances.
I made the right decision in not asking my first mom to help me petition a court for my OBC.
Gregory D. Luce says
Thanks! The court in Rose actually cited the Hungarian citizenship case and said it was not the same because the adoptee in that case had Hungarian birth mom’s approval/consent.
And there are at least two other reported cases in New York involving citizenship and an OBC. In the Matter of SP involved a registry reunited adoptee whose mother was Turkish. The court granted access, with birth mom’s consent, to allow the adoptee to pursue Turkish citizenship.
The Matter of Margaret O.O.K. involved Irish citizenship. Adoptive dad was dead, adoptive mom consented, and Irish birth mom was already known (and petitioner successfully argued that she was not required to be given notice). Access to the OBC was granted so that the adoptee and her family could pursue Irish citizenship and everything that comes with being within the European Union. It seems this case was closer legally to the Rose case, though the kicker seems to be whether you know the identity of the birth parent or not. In the O.O.K. case the court requested that the OBC be shown to the Irish Consulate and then returned to the court!
Mary Wiley, adoptee and psychologist says
I am coming to believe that a Supreme Court civil rights case is needed.
Gregory D. Luce says
I’d say legislation is still the best current option but that legal challenges should supplement those efforts. I’m not holding my breath at all for a federal civil rights case. Rather, we need to identify states where there are solid chances of challenging denials based on the court orders that are issued, typically issued without real regard for the purpose of sealing OBCs. New York may not be that state because of its nutty and incredibly strict process that requires notifications and consent. But New York may be a place where there could be two challenges: 1) to retroactivity of the 1936 statute that sealed OBC records; and 2) the notion that, in 1936, the legislature actually had as a purpose the anonymity of birth parents. Neither of those are easy cases to make but there may be the right case somewhere to try.
Mary Wiley says
Thanks for monitoring this on behalf of all of us. We just got an imperfect legislation through Pennsylvania and it was six (or eight) years of frustration. Multiplying that state by state….sigh.
Maggie Watanabe says
I am so glad I was adopted in Scotland. Here are the regulations for inspecting records. I will never understand why Americans don’t have the same freedom. As the adoptee I have a photocopy of my adoption process.
“Adoption processes are among the most confidential records we and the courts hold. They are closed to general public access for 100 years. This means that our staff are forbidden to examine them. Each process is individually sealed and the indexes themselves are restricted. The processes may, however, be opened to access in the following circumstances:
-to the adopted person if he or she is over 16 years of age. They must produce their some independent proof of their identity (passport, driving licence, staff pass from place of employment, etc)
-to a person authorised in writing by the adopted person. A copy of this authorisation must be given to us. By law, our staff cannot inspect a process on behalf of an adopted person
-to a representative of one of the organisations that deal with adoptions in Scotland, or to an authorised social worker on the authority, in writing, of the adopted person
-exceptionally, and on application to the court that originally dealt with the adoption, a person other than the adoptee may be allowed to inspect the adoption process. This is very rare and is usually only granted for reasons such as medical grounds.
Once it has been examined, the packet of process papers is resealed in the presence of the person who has read them. All enquiries are kept confidential.
The adoption court process will normally contain:
-a copy of the original birth certificate
-an official report to the court at the time of the adoption
-a petition by the adopting parents
-the consent of the birth mother (occasionally the consent of the birth father)
-the name of any adoption agency involved
-confirmation from the court that the adoption may go ahead.
Any other information depends on what the birth parents revealed. As they were under no obligation to reveal any information whatsoever, some adoption processes contain minimal information and sometimes nothing. People examining their adoption process should be prepared both for this and for the possibility that the papers may reveal other distressing information.”
E. Lewis says
So, my paternal grandfather was a foundling at the New York Foundling Hospital from birth in 1914. He was sent out on the orphan train to Wisconsin to be adopted but was never adopted and just used as an indentured servant to that family and any family nearby that needed work from the time he was 7 until 18. We asked for his OBC since he was never adopted and NY State has refused. He died without ever knowing his chapter one, something he so desperately wanted when we read the letters he sent the nuns at the NYFH while he was being used as an indentured servant to a family that had promised to adopt the boy if NYFH sent him out. Sadly, the nuns and NYFS did nothing to get him out of that situation. And still over 100 years later, no OBC.
John Bowman says
Thanks for your excellent analysis, Greg. NY laws are punitive to adoptees, perpetuating inequality against a class of citizens. In my opinion, this represents “cruel and unusual punishment” by NY, which is supposed to be prevented by the Constitution of the U.S. Why is this cruel? Because it denies proof of birth identity; any adoptee knows the painful psychological torture this causes for a lifetime. Why is this punishment? Because the infant committed the unpardonable crime of being born in NY (unlike other states that recognize and respect rights to one’s own birth identity).
Teresa Connelly says
Thanks for this thoughtful and informed piece. My husband was adopted in New York and I am a corporate lawyer and the New York law that i just discovered is horrific. Legislation needs to happen. Serious victim blaming here – you were born to a biological mother that couldn’t raise for a whatever of reason and you are penalized from your own records. It’s the most absurd thing particularly when most adoptions are open /public today. This 1938 law needs to be repealed and/or widely amended. Men in 1938 then did not want these “foundlings” coming out of the woodwork by their offices and homes and ruining their lives. Well it’s a new day and for judges to cite the right to privacy wheb the President can message me on my phone is just again, absurd. Anyone here working with or know advocacy groups on this. I have mutual friends with Daniel O’Donnell, the legislator in the video, (one of of whom found a long lost sister who had been put up for adoption and has a close relationship now) also – initially for potentially assistance and secondly to re-address this from a public policy perspective. Stories are all over the internet about joyful reunions of parents/children/ siblings, but apparently you are not entitled to that joy if you were born here and you cannot do anything about it. Also, does anyone know of the work the advocacy groups are doing on this?
This is making me feel so discouraged, I don’t even know where to begin.
Fast forward to 2019 and legislation has been signed to allow adoptees and descendants access to the OBCs. Knowing the current process for obtaining genealogical (would apply to descendants) it will be years before the requests are filled.
My question is what took place in 1936 when adoption records were sealed? My grandfather was born in 1905; left at an orphanage in 1906; legally adopted in 1911. By the time the law passed in 1936 he was 31. Did someone at the department of health go back and pull or flag all original birth certificates for adoptees since the beginning of recorded births? I’m trying to wrap my brain around how adoption records prior to the law passing were handled.