Relates to persons who may register for the adoption information registry; repealer

Summary of Provisions: Section 1 of the bill repeals Public Health Law (PHL) § 4138-a pertaining to certificates of birth data. Section 1 also inserts new language to state that existing certificate of birth data issued under the current § 4138-a will still be valid after the section is repealed.

Section 2 of the bill amends Public Health Law (P1-IL) § 4138-b to conform the issuance of birth certificates for individuals adopted in other countries to the manner in which birth certificates are issued for births that occur in New York State. The bill provides that the birth certificate will be filed by the Commissioner of Health when there is no other birth record.(other than in the country of birth) for the individ- ual. The bill requires that the adoptive parent be a resident of New York at the time of the adoption. In addition, the bill requires local registrars to submit all supporting documentation for birth certificates issued under the current version of PHL § 4138-b to the Department of Health, which shall file a new birth certificate.

Section 3 of the bill amends PHL 4138-c to replace the term "each parent with "either parent" and clarify that identifying information can be provided about and to consenting parties registered with the Adoption Information Registry. In addition, § 2 of the bill eliminates the abili- ty of biological siblings to access non-identifying information through the registry.

Section 4 of the bill repeals PHL § 4138-c(9).

Section 5 of the bill amends PHL § 4138-d to replace the term "each parent" with "either parent" and clarify that identifying information can be shared among consenting parties registered with the Mutual Consent Voluntary Adoption Information Registry. Section 4 of the bill also eliminates the-ability of biological siblings to access non-identi- fying information through such registry.

Section 6 of the bill repeals PHL § 4138-d(9).

Section 7 of the bill provides that the bill would take effect imme- diately.

Existing Law:

A. Foreign Adoptions

Domestic Relations Law § 111-c provides that a final judgment of adoption granted in a foreign nation shall have the same force and effect as a judgment of adoption entered by a New York court, as long as either adopting parent is a resident of New York, and the validity of the foreign adoption has been verified by the issuance of an IR-3 immi- grant visa for the child by the United States Citizenship and Immi- gration Services.

PHL § 4137 provides that a registrar who receives a certificate of birth for filing shall furnish a copy to the. child's parents or guardian within ten days and without charge.

PHL § 4138-a provides that the Commissioner of Health will issue a "Certificate of Birth Data" when presented with proof that a person who is under the age of 18 and born outside of the United States has been validly adopted by residents of this State pursuant to a judgment, order, or decree of adoption issued by a court of competent jurisdiction in this state, another state, or a foreign country.

PHL §4138-b provides that whenever a foreign adoption recognized pursu- ant to to Domestic Relations Law § 111-c is reported to a local regist- rar, the registrar shall issue a birth certificate for the child. The birth certificate will be issued and filed upon receipt of: (1) proof that the adoptive parent or child is a resident of this state; (2) a copy of the adoption documents of the jurisdiction or country in which the child was adopted; (3) a certified translation of the foreign adoption documents, evidence of the date and place of the child's birth; and (4) evidence of IR-3 immigrant visa status, or a successor immigrant visa status. The birth certificate shall include the child's name, sex, date of birth, time of birth, place of birth, mother's maiden name, and father's name.

PHL § 4173 authorizes a local registrar to issue certified copies or certified transcripts of birth certificates upon request of an individ- ual, if he or she is at least 18 years old, or upon the request of an individual's parent or legal representative. Because births are regis- tered in the locality where they occurred pursuant to PHL § 4130, a copy of a birth certificate is not available from any locality other than where it occurred.

PHL § 4174 authorizes the Commissioner to issue certified copies or certified transcripts of birth certificates upon request of an individ- ual, if he or she is at least 18 years old, or upon the request of an individual's parent or legal representative.

B. Adoption Registries

PHL § 4138-c establishes the Adoption Information Registry within DOH, permitting an adoptee who is at least 18 years old to access identify- ing. and non-identifying information about his or her biological parents or siblings.

PHL § 4138-d authorizes the voluntary agencies involved in private adoptions to establishes a Mutual Consent Voluntary Adoption Registry, permitting an adoptee who is at least 18 years old to access identifying and non-identifying information about his or her biological parents or siblings.

Legislative History: This is a new proposal.

Statement in Support:

A. Foreign Adoptions

Chapter 329 of the Laws of 2008 added Domestic Relations Law § 111-e and PHL § 4138-b to ensure that foreign adoptions are recognized in New York and New York birth certificates can be obtained by such adoptees or their parents. While PHL § 4138-b provides that a birth certificate will be issued by a local registrar in the case of a foreign adoption, the statute does not set forth any criteria - such as an adoptive parent's residence at the time of adoption - that could be used to iden- tify which of the approximately 1,500 local registrars in New York State would be authorized to issue a birth certificate in a particular case. As a result, the statute permits multiple registrars to issue birth certificates for the same adoptee, which could be used to commit identi- ty theft or other frauds. Moreover, the statute effectively imposes the burden of reviewing foreign adoption papers upon local registrars, which may not have the resources or expertise for such an undertaking.

In addition, the statute does not require that birth certificates for foreign adoptions issued by local registrars be filed with DOH. This prevents the State from effectively overseeing or assisting local registrars in the issuance of the certificates. Further, since such birth certificates are not filed with DOH, an adoptee Will be unable to obtain a copy of his or her birth certificate if he or she does not know where the original certificate was filed.

In place of the current requirement that local registrars issue. and file birth certificates for foreign adoptions, this bill provides that the Commissioner shall file birth certificates in such cases. - A certi- fied copy of a birth certificate filed by the Commissioner will be provided pursuant to PHL § 4137 or, on request, pursuant to PHL 4174(h). Birth certificates that may have been filed by local registrars under the existing version of § 4138-b will be refiled by DOH under the bill.

These changes will better conform birth certificate procedures for chil- dren born in other counties and adopted by New York State residents to the birth certificate procedures for children born in New York State. In addition. it will reduce the opportunity for fraud arising from the issuance of multiple birth certificates. and will ensure that foreign- born adopted children will be able to obtain copies of their birth certificates from DOH. Moreover, centralizing the responsibility for birth certificates for adoptees born in other countries within DOH will spare local registrars the fiscal and administrative burdens of review- ing immigration documents and creating and maintaining the necessary birth records.

The bill also imposes several other safeguards to ensure that birth records are created only when appropriate, In particular, the bill provides that the Commissioner shall file a birth certificate for an adoptee born in a foreign country only if there is no birth record other than in the country of birth for the individual. DOH will establish policies for the provision of proof that meets such standards. In addi- tion, the bill requires that an adoptive parent be a resident of New York at the time of the adoption.

Furthermore, this bill eliminates the current law authorizing the issu- ance of a certificate of birth data, since foreign-born adoptees will be able to obtain birth certificates under PHL § 4138-b. However, certif- icates of birth data issued prior to the effective date of this bill will still be valid.

B. Adoption Registries

DOH's Adoption Information Registry permits an adoptee who is at least 18 years old to access three types of information about his or her biological parents or sibling. Identifying information, consisting of names and current addresses, can be shared only if the adoptee and the biological parents and siblings are all registered and have consented to the release of information. Non-identifying information about the birth parents, such as general appearance, religion, ethnicity, race, educa- tion, and occupation, and the facts and circumstances surrounding the adoption can be provided to an adoptee or to the adoptee's biological sibling, even if the birth parents do not register or consent to the release of information, Medical information can be provided by the birth parents to the registry at any time after a child is adopted, and the adoptee can obtain such information if and when he or she registers.

The Mutual Consent Voluntary Adoption Registry permits private adoption agencies to carries out the same functions as the Adoption Information Registry, and permits similar access to information upon registration and, when appropriate, consent.

Chapter 469 of the Laws of 2007 amended PHL §§ 4138-c and 4135-d to permit birth parents whose parental rights had been involuntarily termi- nated to register with the Adoption Information Registry or the Mutual Consent Voluntary Adoption Registry and consent to the release of

medical and/or identifying information to adult adoptees. However, the statutory revisions needed to make this change had the inadvertent effect of requiring in all cases that both birth parents - if both have been identified by the court or are listed on the adoptee's birth certificate - consent to the release of information. As a result, an adoptee registered with either registry cannot obtain information from a consenting birth parent unless the other birth parent has also regis- tered and consented.

The bill corrects this problem by replacing references to "each birth parent" with references to "either birth parent" and expressly noting that identifying information about consenting registrants can be shared with other consenting registrants. This permits an adoptee, a biological sibling and a birth parent to obtain identifying information about each other, even if another birth parent has not registered with a registry and provided consent to the release of identifying information. The bill repeals PHL § 41 38-c(9) and 4198-d(9), which currently permits one birth parent to register and consent when another birth parent is deceased. Because the bill permits the release of information even if only one parent registers and consents, these subdivisions are no longer necessary.

Finally, the bill addresses another flaw in the existing statutory language that allows the biological sibling of an adoptee to have access to information even if the adoptee is not registered. In most cases, this would be innocuous, as the biological sibling, who was not adopted out, is presumably aware of the identity of his or her parents. However, his or her parents may not wish the sibling to have access to other non-identifying information included in the registry, such as the facts and circumstances relating to the nature and cause of the adoption. Accordingly, the bill eliminates the ability of biological siblings to access non-identifying information, and permits them access only to identifying information which is shared on consent.

Budget Implications: This bill is not expected to have a fiscal impact to the State.

Effective Date: This bill would take effect immediately.