PURPOSE OR GENERAL IDEA OF BILL: This bill would enable all persons born in New York State, if eighteen years of age or older, to obtain their own original birth records by specific request.

SUMMARY OF SPECIFIC PROVISIONS: Sections 1, 2, 3, and 4 of the bill retroactively amend section 4138 of the public health law to enable persons born in New York State to obtain a copy of their original birth records when eighteen years of age or older.  Section 5 of the bill retroactively amends the corresponding section governing New York City, section 17-167 (c) of the New York Administrative Code to accomplish the same.

Sections  1, 2, 3, and 4 of the bill retroactively amend subsections 3 (a), 3 (b), 4, and 5 of section 4138 of the public health law to enable persons born in New York State to obtain a copy of their original birth records when eighteen years of age or older.  Section 5 of the bill retroactively amends the corresponding section governing New York City, section 17-167 (c) of the New York Administrative Code to accomplish the same.  The phraseology used to accomplish this is borrowed from N.Y. PUB. HEALTH LAW §§ 4173 (2) and 4174 (1) (b); N.Y. ADMIN. CODE § 17-169; 10 NYCRR 35.2 (a) (2).

The language used to retroactively amend these sections would make New York’s laws substantially similar to the corresponding statutes of the U.S. jurisdictions of Alabama, Alaska, Kansas, Oregon, Puerto Rico, and the U.S. Virgin Islands.  See ALA. CODE § 22-9A-12 (c); ALASKA STAT. § 18.50.500 (a); KAN. STAT. ANN. § 65-2426 (a); OR. REV. STAT. § 432.240 (1); P.R. LAWS. ANN. tit. 87, § 1136; V.I. CODE ANN. tit. 16, § 145 (c).

The language is also in keeping with that proposed by several Model State and Uniform Acts.  See UNIF. VITAL STATISTICS ACT § 24 (1942); UNIF. ADOPTION ACT § 14 (2) (1953); MODEL ST. VITAL STATISTICS ACT § 21 (2) (1941); MODEL ST. ADOPTION ACT § 502 (a) (1980); see also UNIF. ADOPTION ACT comment on Art. 6 (1994) (states may choose “to provide original birth certificates to an adult adoptee upon request”).

EXISTING LAW:  Presently, people born in New York State whose original birth records are being held by the Department of Health as confidential would need to obtain an order from a court of competent jurisdiction authorizing the Department of Health to release those records.  The affected people are those who have received new certificates in case of subsequent marriage of unwed parents, adoption, adjudication of  parentage, or change of name.

JUSTIFICATION: While the current law regarding birth records access does not bar the release of original records to the subject of those records in cases where those records have been amended, it does create a different method of access than the method for the release of original records in cases where those records have not been amended.  The law's vagueness has lent itself towards a faulty interpretation of the law which interpretation creates an impossibly high standard for people, particularly adoptees, to obtain their original birth records.  Requiring court action to obtain original birth records places an undue burden on the courts if the requests are made by a proper party.  More importantly, the failure to permit unconditional access to those records for the subject of those records violates that person's privacy, information, and identity rights.  This bill serves to clear up the confusion the vagueness of the law has created and to reject that interpretation of the law which prevents unconditional original birth records access for people, particularly adoptees.  It provides for equal treatment, making the method of access to original birth records for persons whose records have been amended the same as that for those persons whose records have never been amended.

Original birth certificates were sealed in New York by L. 1936, C. 854..  The legislative intent of sealing original birth certificates was never to prevent people from obtaining their own original birth certificates, nor was it to prevent people from learning the identity of their own natural parents.  The sole purpose behind the sealing of original birth certificates was to protect nonmarital children from the stigma of illegitimacy.  It was intended to “preserve the records and make them available, but [to] prevent outsiders as well as curious clerks from securing the data on the original certificate, except if they could secure a court order [emphasis added]” (The Message of the Governor Recommending Enactment of Legislation Which Will Remove the Stigma of Illegitimacy from Unfortunate Children Born Out of Wedlock....,  Legislative Document (1936) No. 109.  (J. B. Lyon Company, Printers 1936) at 29.).  The law has never been amended by the Legislature in any way that altered the original intent.

Through judicial legislation the courts in New York State have obscured the legislative intent behind the statute sealing original birth records.  The Legislature has an obligation to reject judicial legislation and clarify that original legislative intent behind this law was not to prevent people from accessing their own original birth records, but to prevent the public from doing so.  People whose birth records have been amended are meant to enjoy the same right or privilege of obtaining their birth records in New York that is enjoyed by people whose birth records have not been amended, and this new law would explicitly indicate that by removing any potential obstacles to access.  Furthermore, the procedure for access is moved from “a court of competent jurisdiction” to the Department of Health Vital Statistics, making it the same, simpler process that most people already follow in New York State.

PRIOR LEGISLATIVE HISTORY: Similar to S.9194 - 1980
Similar to S.4889 - 1981-82
Similar to S.3200 - 1983
Similar to S.9032 - 1984
Similar to S.8561 - 1994
Similar to S.3709 - 1995-1996

Similar to A.10403 - 1994
Similar to A.2328 - 1995-1996

FISCAL IMPLICATIONS: Increase in State revenues; birth certificates cost fifteen dollars or thirty five dollars and fifty cents for Federal Express service.

EFFECTIVE DATE: Immediately