The right of adoptees to access their own original birth certificates is at stake when Florida legislators suggest new, and potentially compromised, OBC access legislation.
To understand how damaging compromised legislation would be to Florida adoptees, it helps to understand one thing: most Florida adoptees have retained an unrestricted legal right to access their own original birth certificates. Not only did Florida courts affirm that right in 1976, but the history and context of Florida law is abundantly clear: the vast majority of adult adoptees have had unrestricted access to their original birth certificates for nearly 100 years.
Florida first issued new and amended birth certificates for adoptions in 1939, sealing the original birth certificates. But for the next 38 years, the state explicitly recognized an adoptee’s right to obtain the original birth certificate upon request. While Florida in 1947 sealed its court records in adoptions, adult adoptees continued to have access to their original birth certificates through the department of health. No law has retroactively changed that right for most Florida adoptees; that is, for those who were adopted prior to 1977.
It is critical for advocates and legislators to understand Florida’s legislative and legal history before embarking on an effort that may ultimately compromise a vested right that has been unrestricted for decades. Compromising on OBC access legislation today will mean stripping most adult adoptees in Florida of access rights they have legally retained for generations.
Understanding Florida OBC Access Law: A Timeline
1885The Florida legislature enacts the state’s first adoption law. The law is 308 words long and requires a petition, hearing, and order from the court to approve an adoption. The law does not seal records or make records confidential. Adoption decrees and orders are instead “made a matter of record in . . . circuit court.” Source: Fla. Stat. Ann. §§ 1536-1541 (Revised 1892)
1924Florida attorney general Buford Rivers determines that the state board of health does not have the authority to create new birth certificates in cases where parents legitimize a birth through marriage. Instead, the original birth certificate may be “corrected” or amended. The original cannot be destroyed. Source: Op. Att’y Gen. Fla., December 20, 1924
1938The state board of health asks the attorney general if the board has “any authority to issue a new certificate in the case of legal adoption of a child.” Citing Buford Rivers’s earlier opinion from 1924, the Florida attorney general succinctly responds:
that this question must . . . be answered in the negative, for the reason that [Florida] statutes do not purport to authorize such a procedure.
In a separate but related question, the attorney general also advises that the state board of health does not have the authority to issue a new birth certificate to replace the OBC in cases where a child has been legitimized. Accordingly, by 1938, Florida law does not allow the board of health to issue a new and amended birth certificate in cases of adoption or legitimacy. The original birth certificate remains available to anyone adopted prior to 1939.
Source: Op. Att’y Gen. Fla., November 6, 1938
1939The Florida legislature enacts a law authorizing the issuance of new birth certificates in cases of adoption and legitimized births. Upon issuance of the new birth certificate, the original is sealed. Section 2 of the new law, however, reserves the right to access the original birth certificate “at the instance and request of the person whose birth is the subject of the said certificate of birth.”
1939 Florida Sessions Laws, Chapter 19063
Senate Bill No. 72
Section 2. That when a new certificate of birth is made, the State Registrar shall substitute the new certificate of birth for that on file in the State Bureau of Vital Statistics of the State Board of Health, and shall place the original certificate of birth and all papers pertaining thereto under seal, not to be broken or opened except by decree, judgment or order of a court of competent jurisdiction; or at the instance and request of the person whose birth is the subject of the said certificate of birth; provided, however, that before any such person shall be entitled to have the seal broken and the record opened without order of court, he or she shall first identify himself or herself to the satisfaction of the State Registrar. Thereafter, when a certified copy of the certificate of birth of such person is issued it shall be a copy of the new certificate of birth, except when an order, judgment or decree of a court of competent jurisdiction shall require the issuance of a copy or certified copy of the original certificate of birth, or except when such copy of the original certificate shall be requested by the person whose birth is the subject of the said certificate, such person having first furnished satisfactory evidence of identity as is hereinabove provided.
While the 1939 law seals original birth certificates for the first time in Florida history, the law nevertheless reserves to adoptees their right of unrestricted access to their original records. This remains the law for the next 38 years, from 1939 until 1977. Source: Chapter 19063, Laws of Florida (1939)
1943Florida amends its adoption law for the first time since 1885. The new law requires, among other things, investigations prior to adoptive placements, statutory protections related to the consent of birth parents, and the forwarding of the adoption decree to the registrar of vital statistics “to be recorded and preserved by said Registrar as provided by law.” The new law does not seal court records or make any other records or files confidential. The Florida vital records office is still required to provide an adoptee with his or her original birth certificate upon request. Source: Chapter 21759, Laws of Florida (1943)
1947Florida revises its adoption law, including a provision that seals court records for the first time in Florida history. The new law is limited only to court “records, papers, and files.” While confidentiality of records is also required for the child welfare board and for child-placing agencies, the law does not change the procedure followed for access to an original birth certificate. The 1939 law providing unrestricted access to an original birth certificate remains unchanged. Source: Fla. Stat. §§ 72.01-72.39 (Suppl. 1947)
1949The Florida legislature modifies provisions of its vital records law. In provisions dealing with access to original birth certificates, the law for the first time ensures that access to a sealed original birth certificate in cases of illegitimacy or unknown parentage must be provided to “the registrant, if of legal age, or upon the order of any court of competent jurisdiction.” The legislature also makes minor amendments to the provisions dealing with issuance of new amended birth certificates in cases of adoption, but specifically leaves in place the 1939 provisions ensuring adoptees have an unrestricted right to access their own original birth certificates. Source: Chapter 25372, Laws of Florida (1949)
1974In the context of sealed original birth records involving legitimacy, the Florida attorney general makes clear that original birth certificates remain available upon request to the “registrant,” whom the attorney general clarifies is the “person whose birth is registered or filed with the Central Bureau of Vital Statistics.” The attorney general’s opinion confirms again that sealed original birth certificates remain available upon request to the registrant, if of legal age. Source: Op. Att’y Gen. Fla. 74-70 (1974)
1975Florida vital records laws are modified in relation to paternity issues, changing the phrase “illegitimate child” to “child born out-of-wedlock.” The changes involve language modifications to a number of provisions dealing with adoptions and original birth certificates. The legislature, however, continues to leave in the provision that gives an adoptee the right to obtain his or her original birth certificate upon request. Source: Chapter 75-166, Laws of Florida
1976Betty Mullarkey, an adult adoptee, requests her original birth certificate from the Florida Department of Health, pursuant to the OBC access law that has been in place and unchanged since 1939. The department refuses to release her OBC, alleging that birth parents have an interest in maintaining their confidentiality. Mullarkey sues, and the circuit court orders release of the original birth certificate. The department appeals the circuit court opinion. The court of appeals upholds the trial court’s decision and rejects the department’s position on the matter, stating:
the legislature nevertheless has explicitly required the Department to furnish the original birth certificate and all papers pertaining thereto ‘at the instance and request of the person whose birth is the subject of the said certificate of birth.’
The court of appeals orders release of the original birth certificate to Mullarkey. Adoptees like her, whose adoptions were finalized prior to 1977, continue to retain unrestricted access to their original birth certificates. Source: State Dept. of H. & R. Services v. Mullarkey, 340 So.2d 123 (Fla. Dist. Ct. App. 1976)
1977A new law for the first time requires a court order for an adoptee to request and obtain an original birth certificate. The law, however, does not actually repeal prior language from the 1939 vital records law, which entitled the adoptee to obtain the record upon request. Rather, the new law makes the request for the OBC subject to review by the court in adoption proceedings. The law is effective June 30, 1977, but it is not retroactive. Sources: Chapter 77-147, Laws of Florida • Chapter 77-446, Laws of Florida
1987The Florida legislature eliminates language from the original 1939 law that had for decades given adoptees unrestricted access to their original birth certificates upon request. The law is effective October 1, 1987. Source: Chapter 87-387, Laws of Florida
Florida adoptees whose adoptions were finalized before June 30, 1977, are entitled to their original birth certificates today. If proposed legislation does not preserve a clean and unrestricted right to the OBC, then such legislation will simply strip rights away from all adoptees, and particularly older adoptees. Ask Betty Mullarkey, who in 1976 requested her original birth certificate and received it. While she had to sue the Florida department to get it, the court of appeals recognized her right to receive her original birth record and ordered that it be issued. That right exists today. It should never be compromised.