This article relates to the October 2017 publication of an Adoptee Rights Law Center report on Florida adoptee rights. That report has since been updated and is available here.
The right of adoptees to request and obtain their own original birth certificates is at stake when Florida legislators suggest new, and potentially compromised, OBC-related 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 obtain 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 had an unrestricted right to obtain 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 retained the right to obtain their own 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 adoptee rights legislation today will mean stripping most adult adoptees in Florida of rights they may have legally retained for generations.
Understanding Florida Adoptee Rights 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 obtain 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 unrestricted right to their own 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 obtaining an original birth certificate. The 1939 law providing an unrestricted right 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 obtaining original birth certificates, the law for the first time ensures the right to obtain 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 obtain 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 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 rights to obtain their own 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 rights 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 an 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.
If I am understanding this correctly, Florida could move forward with legislation which deals with OBC “after 1977”. Specify the years in the wording of the bill? I know it could than be amended to say “all” or amended with a contact veto or contact preference, but at that time it could be killed. No?
i am writing a motion now including the timeline of law that should open up till 87 on finalization stamp.
Gregory D. Luce says
Sort of. The fact that adult adoptees had unrestricted access to the OBC for more than 80 years, without any issues, is proof enough that Florida should simply restore that right legislatively for all adoptees. Or we could enforce it for pre-1977 adoptees through a lawsuit.
The language to make it applicable to all adoptees, whether pre-1977 or post-1977, is not hard to write and essentially would revert back to the law that existed prior to June 30, 1977. Part of that would involve removing the phrase “including the original birth certificate” in this part of the adoption law (paragraph 2), and amending this vital records provision (paragraph 4) to allow an adult adoptee to request and obtain the OBC at age 18. Again, this would simply restore a right that had already existed and should be applied to all adoptees.
I was adopted in Florida (Duval County) in 1963. Where do I request my OBC. The agency (CHS in Jacksonville) told me I could petition the court if I have notarized consent from bio and adoptive parents.
Angel Gutierrez says
So , I’ve received my moms OBC and adoption decree from Florida vital statistics.
1) I thought it would include wether or not my mom was in an orphanage or include my moms history of how my grandparents met her to adopt her.
2) we’ve been told by birth family that mom was adopted at 3 months, yet the decree is dated 2 years after her birth date. Was this common practice? Does this mean my mom was in foster care or an orphanage for long time prior to decree date?
Thank you so much!
Gregory D. Luce says
Glad to hear that you got your mom’s OBC and adoption decree! Those documents, unfortunately, would tell you very little about the circumstances surrounding her birth. For that you would likely need agency records, if they exist. And those are extremely hard to get.
As to the circumstances with an adoption finalized two years after birth, it’s not uncommon, especially in older adoptions. It could be explained by a number of scenarios. It’s possible your mother was placed in your grandparents’ home at three months and that the agency worked with your grandparents toward adoption, which occurred much later. It could be the “family lore” is not correct and that she was placed at two years (though I find this unlikely if it was your grandparents who were involved). It’s really tough to figure out.
Sally Alisa says
I too was adopted through CHS. I was born in 1966. What did you have to do to be able to obtain your Mom’s OBC and adoption decree? I am looking for my birth mother’s name. Were the birth parents’ name on the OBC?
Thanks so much,
Angel gutierrez says
We did dna thrue ancestry and was able to match up with my moms biological half nieces and nephews. They were willing to give over death cert to be able to obtain document from Florida. It’s easy if you have the death certificate of bio mom. My mom would of rather met her bio mom, but it was nice to have this closure. We did find out thrue dna , that the father listed on obc isn’t her biological father.
There’s so much you can find out thrue dna. I recommend ancestry . You see if you have any 1 st cousin matches and just start reaching out to them.
Sally Alisa says
Hi Angel! Thanks so much for that info. I actually discovered my first cousin on my father’s side via ancestry.com a couple of years ago. My son is the first one who took the DNA test. My cousin and I have signed up with another DNA site (myheritage.com) and we have had absolutely NO matches for me on my biological mother’s side on either DNA site. It looks like my biological mother never had any other children and probably didn’t have any siblings. Every single cousin on the lists (down to 4-6th) is a match only on my father’s side. So strange! I just want to get my bio-mom’s name. I tried calling Vital Stats and they said that we could only get info if we had death certificates. I told them my bio-father was already deceased but I have no way of knowing if my bio-mom is still alive or also deceased.
I was born in 1966. Were you able to get your mother’s records with just providing her bio-mom’s death certificate and also including permission from her adoptive parents? In other words, all you had to do was provide the death certificate for only one of her biological parents and they gave you her OBC and from there you were able to determine the other biological parent’s name? It’s so confusing every time we try to contact someone “official” in Florida. They told me at vital stats that I had to have everyone’s death certificate! We’re pulling our hair out here! Thanks, Sally
Hello ! I had to send death certs for bio dad , bio mom, adopted mom and dad. I already could tell the bio dad was not the bio dad , but figured I had to send the death certificate solely for the reason his name was listed on obc. He was away at war when grandma got pregnant and gave birth. Soooo, easy to figure out !
We sent all that off with short letter of explanation and my mother’s signature. And we got it notarized thrue her bank . This was no charge to her from bank. The adoption decree was in the records BY ACCIDENT!! The adoption was finalized in Pennsylvania , and according to their courts , the decree should not have been in the records with birth certificate.
I have not , however been able to get the adoption records released from Pennsylvania. We have sent off documents and they weren’t enough for them blah blah blah ….at this point this might be all we find out. I would love to learn the details surrounding my moms adoption, but this might be as far as we get.
Does anyone On your bio dads side know the circumstances surrounding your birth ? Maybe an aunt , a sister of his ?
Jennifer McRae says
This has been a very interesting read. My husband was born in 1965 in Flagler County, places into foster care in that county, and then adopted by a family in Brevard County at the age of 4 months.
Through a connection with the Flagler County Clerk of the Court we learned that because my husband was adopted into Brevard County his OBC and all adopted records would be held by the clerk of the court’s office in Brevard County.
So off we went to the clerk’s office in Brevard County. We happened to have to chancery number related to my husbands records and by having that along with his current identifying info the person working to counter was able to locate his OBC. She disappeared behind a wall where the records were kept, pulled his OBC out, photocopied it, redacted the copy , and handed it to us with no identifying information visible.
This was so frustrating and disappointing to say the least; to be across the room from his OBC, that this person just his information, and yet he , the person whom the information rightly belongs, could not see his own personal story.
We did not know at that time about this legal narrative/timeline. Has the new law been put into effect? Was this clerk taking actions outside or beyond their job description and authority?
We are going to go down and try to get his records again. The clerk we spoke with in Brevard County that day told us he could petition a judge for access. That may be our next step, if we can’t get it through pointing out that he was born prior to 1977.
Having to do that though would seem so unjust. Interestingly, the clerk in Flagler County told us that if his records were still held in Flagler she could provide them to him easily that day, as she had a good relationship wi the local judge and he was very pro-adoptee and would Likely unseal them.
This suggests that even when a petition is made to a judge to unseal the records (which now seems unnecessary after reading this article) that access is provided unequally and without consistent circumstantial standards.
It seems that someone several someone’s are going to have to sue the state, the counties, or whomever is appropriate to get adoptees unrestricted and unbiased access to their own OBC’s.
Terry Habershaw says
I am a 74 year old adoptee and can’t understand why I cannot get my original birth certificate. I was adopted through chs in Jacksonville Fl.. At this age it seems illegal to keep a person’s identy sealed especially because of health. Is there any help?
Al Sacco says
I have an adoptive friend who was born in Clearwater, FL in 1991. Can she apply for her OBC from Clearwater or from Pinellas County public health department without getting a court decree?
Is there a form that needs to be filled out, & what might it cost? Thank you. Al Sacco .
Scott Watkins says
My father was born in 1953 in Tampa, FL. He was adopted and does not have the OBC. My father died in December 2021. He never knew his biological family nor do I. Is it possible for me to obtain his OBC since I am his biological son and because he is now also deceased? Seems like the laws would have allowed my father to request but how would that work now that he has died?
Gregory D. Luce says
From my understanding of how the vital records office handles descendant requests, they would not release an original birth record to you, likely for a couple of reasons: 1) the law does not include descendant requests; and 2) you would still need proof of death (or consent) of any birthparents listed on the birth record. But it is likely worth a phone call to the office that handles these issues, and more information about contacting the office is here (under the tab “Release of Original Birth Certificate”).
So, if i was born in 1974 – then I have a right to this information – and always have?
I paid Children’s Home Society THOUSANDS of dollars, over the last thirty years, to help me track down my biological relatives – asking them to help get access to my birth certificate – and you’re telling me I should’ve had it the whole time? Is this for real?