NY State Senate Bill 2009-S3255

Senate Bill S3255

Signed By Governor

2009-2010 Legislative Session

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

download bill text pdf

Archive: Last Bill Status Via A8498 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jul 15, 2010	signed chap.181
Jul 08, 2010	delivered to governor
Jun 10, 2010	returned to assembly passed senate
May 04, 2010	3rd reading cal.437 substituted for s3255a
May 04, 2010	substituted by a8498a
May 03, 2010	advanced to third reading
Apr 28, 2010	2nd report cal.
Apr 27, 2010	1st report cal.437
Jan 06, 2010	referred to health
Aug 28, 2009	print number 3255a
Aug 28, 2009	amend and recommit to rules
Jul 16, 2009	committed to rules
Jun 01, 2009	advanced to third reading
May 27, 2009	2nd report cal.
May 26, 2009	1st report cal.438
Mar 13, 2009	referred to health

Votes

- Jun 10, 2010 - Floor Vote
  A8498
  
  61
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 10, 2010
      
      aye (61)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      excused (1)
      
      Morahan
  Apr 27, 2010 - Health Committee Vote
  S3255
  
  13
  
  Aye
  
  1
  
  Nay
  
  3
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Health Committee Vote: Apr 27, 2010
      
      aye (13)
      
      Duane
      
      Fuschillo
      
      Klein
      
      Kruger
      
      Larkin
      
      Little
      
      Montgomery
      
      Saland
      
      Sampson
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Young
      
      nay (1)
      
      Hannon
      
      aye wr (3)
      
      Farley
      
      Johnson
      
      Winner

Bill Amendments

Original

A (Active)

2009-S3255 - Details

Law Section:: Public Health Law
Laws Affected:: Rpld & add §4138-a, amd §§4138-b, 4138-c & 4138-d, rpld §4138-c sub 9, rpld §4138-d sub 9, Pub Health L

2009-S3255 - Summary

Relates to persons who may register for the adoption information registry; relates to birth certificates of adopted children.

2009-S3255 - Sponsor Memo

                                 BILL NUMBER:  S3255

 TITLE OF BILL :

An act to amend the public health law, in relation to birth
certificates for children born in foreign countries; and registration
for the adoption information registry; and repealing certain
provisions of such law relating thereto


 PURPOSE :

This bill: (1) centralizes within the Department of Health (DOH)
procedures for the filing and issuance of birth certificates for
children adopted in foreign countries; (2) cures a technical statutory
flaw that prevents the release of identifying information to
consenting parties under the Adoption Information Registry or the
Mutual Consent Voluntary Adoption Registry if both birth parents have
not registered and consented to such release; and (3) eliminates the
access of the biological siblings of adoptees to non-identifying
information available through the registries.

 SUMMARY OF PROVISIONS :

Section 1 of the bill amends Public Health Law (PHL) § 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 individual. The bill also provides that such birth
certificates will be filed only for children that were under the age
of 18 at the time of the adoption, and requires that the adoptive
parent be a resident of New York at the time of the adoption.

Section 2 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 ability of biological siblings to access non-identifying
information through the registry.

Section 3 of the bill repeals PHL § 4138-c(9).

Section 4 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-identifying information through such registry.

Section 5 of the bill repeals PHL § 4138-d(9).

Section 6 of the bill provides that the bill would take effect
immediately.

 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

immigrant visa for the child by the United States Citizenship and
Immigration 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
pursuant to Domestic Relations Law § 111-c is reported to a local
registrar, 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
individual, 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
registered 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
individual, 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
identifying and non-identifying information about his or her
biological parents or siblings.

PHL § 4138-d authorizes the voluntary agencies involved in private
adoptions to establish 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-c
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 identify 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
identity 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
certified copy of a birth certificate filed by the Commissioner will
be provided pursuant to PHL § 4137 or, on request, pursuant to PHL §
4174(b).

This will better conform birth certificate procedures for children
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
reviewing 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 h0111 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 addition, the bill provides that birth certificates for
foreign-born individuals will be filed only for children that were
under the age of 18 at the time of the adoption, and requires that an
adoptive parent be a resident of New York at the time of the adoption.
These provisions are consistent with the procedures applicable to
children who are born outside of the United States and obtain a
"Certificate of Birth Data" pursuant to PHL § 4138-a.

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,
education, 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 4138-d to
permit birth parents whose parental rights had been involuntarily
terminated 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
registered 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 §§ 438-c(9) and
4198-d(9), which currently permits one birth parent to register and
consent when another birth parent is deceased. Because the hill
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.

2009-S3255 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3255

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 13, 2009
                               ___________

Introduced  by Sen. DUANE -- (at request of the Department of Health) --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Health

AN ACT to amend the public health law, in relation to birth certificates
  for  children  born  in  foreign  countries;  and registration for the
  adoption information registry; and  repealing  certain  provisions  of
  such law relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 4138-b of the public health law, as added by  chap-
ter 329 of the laws of 2008, is amended to read as follows:
  S  4138-b.  Birth  certificate: foreign country adoption. Whenever the
adoption or finalization of a  foreign  adoption  or  recognition  of  a
foreign  adoption  of  a  child UNDER THE AGE OF EIGHTEEN AT THE TIME OF
ADOPTION pursuant to  section  one  hundred  eleven-c  of  the  domestic
relations  law  has been reported to the [local registrar] COMMISSIONER,
the [registrar] COMMISSIONER shall [issue] FILE a birth certificate  for
the  child  PROVIDED  THERE IS NO OTHER BIRTH CERTIFICATE OR OTHER BIRTH
RECORD ON FILE OTHER THAN IN THE COUNTRY WHERE SUCH CHILD WAS  BORN  AND
PROVIDED,  FURTHER,  THAT A CERTIFICATE OF BIRTH DATA DOES NOT EXIST FOR
THAT PERSON. Such birth certificate shall be  [issued  and]  filed  upon
receipt  of: proof that the adoptive parent [or child is] WAS a resident
of this state AT THE TIME OF ADOPTION; a copy of the adoption  documents
of  the jurisdiction or country in which the child was adopted; a certi-
fied translation of the foreign adoption documents, evidence of the date
and place of the child's birth; and  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.  IF A  BIRTH  CERTIF-
ICATE  HAS  BEEN  ISSUED  PURSUANT  TO THE PROVISIONS OF THIS SECTION, A
CERTIFICATE OF BIRTH DATA MAY NOT BE ISSUED.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07530-08-9

S. 3255                             2

  S 2. Subdivisions 2, 4, 5 and 6 of section 4138-c of the public health
law, subdivision 2 as amended by chapter 435 of the laws of 2008, subdi-
vision 4 as amended by chapter 588 of the laws of  1999,  and  paragraph
(a)  of subdivision 4 and subdivisions 5 and 6 as amended by chapter 469
of the laws of 2007, are amended to read as follows:
  2.  The  registry shall accept, at any time, and maintain the verified
registration transmitted by an  agency  pursuant  to  section  forty-one
hundred  thirty-eight-d of this [article] TITLE, or of the birth parents
of an adoptee if such adoptee was born in this state. The registry shall
not accept nor maintain the registration of an adoptee sooner than eigh-
teen years after the adoptee's birth, or in the case of registration  by
a  biological  sibling of an adoptee, no sooner than the longer of eigh-
teen years after the biological sibling's birth or eighteen years  after
the  adoptee's birth; provided, however, that any person whose registra-
tion was accepted may withdraw such registration prior to the release of
any identifying information. The adoptee registrant, and the  biological
sibling  registrant, shall include as part of the registration the iden-
tification, including the name and address, of known biological siblings
of the adoptee. The adoptee may upon registration or any time thereafter
elect not to have  release  of  information  by  the  authorized  agency
involved  in such adoption. The department shall establish an authorized
agency fee schedule for search costs and  registry  costs  and  services
provided by such agency in gathering and forwarding information pursuant
to this section. The fee schedule may also include costs for disseminat-
ing  information about the registry and the adoption medical information
sub-registry to the public. Such publications or brochures  may  include
information  as  to  identifying and non-identifying information, how to
register and fees charged to the registrants, and any other  information
deemed appropriate.
  4.  Upon acceptance of a registration [by an adoptee or by the biolog-
ical sibling of an adoptee] pursuant to  this  section,  the  department
shall  search  the  records  of  the department to determine whether the
adoptee's adoption occurred within the state.
  (a) If the department determines that the adoption occurred within the
state, it shall notify the court wherein the adoption occurred to submit
to the department non-identifying information as may be contained in the
records of the court and the names of the birth parents of the  adoptee.
Notwithstanding  any  other  provision of law to the contrary, the court
shall thereupon transmit to the department  non-identifying  information
as  may  be  contained in the records of the court, and the names of the
birth parents of the adoptee, provided that,  if  the  court  determines
from  its  records  that the adoption was from an authorized agency, the
court shall submit to the department only the name and address  of  such
authorized  agency and the names of the birth parents of the adoptee. In
such cases, unless the adoptee registrant  [or  the  biological  sibling
registrant]  shall  have  elected otherwise, the department shall notify
the authorized agency whose name was provided by the  court  to  release
promptly to the adoptee [or biological sibling registrant] all non-iden-
tifying  information  as  may  be contained in the agency records.  Such
agency shall thereafter promptly release the non-identifying information
to the adoptee registrant. If the adoptee registrant shall have  elected
not  to  have  the  information released to him or her by the authorized
agency, the agency shall submit promptly to the department all non-iden-
tifying information as may be contained in the agency  records.  In  any
case  where  the  agency  records are incomplete, no longer exist or are
otherwise unavailable, the department shall so  notify  the  court.  The

S. 3255                             3

court  shall  thereupon promptly submit such non-identifying information
as may be contained in  their  records.  If  no  authorized  agency  was
involved  or  if  the  adoptee registrant shall have elected not to have
release  of  information  by  the  authorized  agency  involved  in such
adoption, the department shall release the  non-identifying  information
to  the  adoptee  registrant. The department and/or an authorized agency
may restrict the nature  of  the  non-identifying  information  released
pursuant to this section upon a reasonable determination that disclosure
of  such  non-identifying  information  would  not  be in the adoptee's,
biological sibling's, or parent's best interest.
  (b) If the department determines that the adoption did not occur with-
in the state, it shall notify the  adoptee  registrant  that  no  record
exists of the adoption occurring within the state.
  5.  Upon  acceptance  of  a registration pursuant to this section, the
department shall search the registry to determine whether  the  adoptee,
any  biological  sibling of the adoptee, or birth parents of the adoptee
is also registered.
  (a) If the department determines the adoptee is not in contact with  a
biological  sibling under the age of eighteen and that there is a corre-
sponding registration for the adoptee, for [each] EITHER  of  the  birth
parents,  and/or  for the biological sibling registrant, it shall notify
the court wherein the adoption occurred and the department shall  notify
all  such  persons  that a corresponding match has been made and request
such persons' final consent to the release of identifying information.
  (b) If the department determines that there is no corresponding regis-
tration for the adoptee, for [each] EITHER of the birth parents,  and/or
for a biological sibling of the adoptee, it shall notify the registering
person  that  no corresponding match has been made. The department shall
not solicit or request the  consent  of  the  non-registered  person  or
persons.
  6. Upon receipt of a final consent by the adoptee, by [each] EITHER of
the  birth  parents,  and/or by a biological sibling of the adoptee, the
department shall, unless the adoptee or  biological  sibling  registrant
shall  elect  otherwise,  if  an  authorized agency was involved in such
adoption, release identifying information to such  agency;  such  agency
shall  thereafter  promptly  release  identifying  information ABOUT THE
CONSENTING REGISTRANTS  to  [all]  the  CONSENTING  registrants.  If  no
authorized  agency was involved, or if any registrant shall have elected
not to have release of the information by the authorized agency involved
in such adoption the department shall release identifying information to
[all] the CONSENTING registrants. Such identifying information shall  be
limited  to  the  names  and addresses of the CONSENTING registrants and
shall not include any other information contained  in  the  adoption  or
birth  records.  However,  nothing in this section shall be construed to
prevent the release of adoption records as otherwise permitted by law.
  S 3.  Subdivision 9 of section 4138-c of  the  public  health  law  is
REPEALED.
  S  4.  Subdivisions 3, 4, and 5 of section 4138-d of the public health
law, subdivisions 3 and 4 as amended by chapter 588 of the laws of 1999,
the opening paragraph of subdivision 4 as separately amended by  chapter
504  of the laws of 1999 and paragraphs (a) and (b) of subdivision 4 and
subdivision 5 as amended by chapter 469 of the laws of 2007, are amended
to read as follows:
  3. Upon acceptance of a registration [by an adoptee or the  biological
sibling  registrant]  pursuant  to this section, the agency shall search

S. 3255                             4

the records of the agency to determine whether the agency  was  involved
in such adoption.
  (a)  If the agency determines that the agency was not involved in such
adoption, it shall notify the registrant that no record  exists  of  the
adoption  and refer the registrant to the department's adoption informa-
tion registry operated pursuant to  section  forty-one  hundred  thirty-
eight-c of this [article] TITLE.
  (b)  If  the  agency  determines  that the agency was involved in such
adoption, it shall transmit the registration to the adoption information
registry operated by the department and the  agency  shall  release  the
non-identifying  information,  as defined in section [four thousand one]
FORTY-ONE hundred thirty-eight-c of this [article] TITLE, to the adoptee
registrant [or  the  biological  sibling  registrant].  The  agency  may
restrict the nature of the non-identifying information released pursuant
to  this section upon a reasonable determination that disclosure of such
non-identifying information would not be in the adoptee's,  the  biolog-
ical sibling's or parent's best interest.
  4.  Upon  acceptance  of  a registration pursuant to this section, the
department shall search the  records  of  the  department  to  determine
whether the adoptee's adoption occurred within the state. The department
shall  establish  an authorized agency fee schedule for search costs and
registry costs of an authorized agency.
  (a) If the department determines that there is a corresponding  regis-
tration  for  the adoptee, for [each] EITHER of the birth parents and/or
for a biological sibling of the adoptee, it shall notify the court wher-
ein the adoption occurred and the department  shall  notify  the  agency
that  a  corresponding  match has been made. The agency shall notify all
such [persons] REGISTRANTS that a corresponding match has been made  and
request such persons' final consent to the release of identifying infor-
mation.
  (b) If the department determines that there is no corresponding regis-
tration  for  the  adoptee, for EITHER OF the birth parents and/or for a
biological sibling of the adoptee, it  shall  notify  the  agency  which
shall notify the registering person that no corresponding match has been
made. The agency shall not solicit or request the consent of the non-re-
gistered person or persons.
  5. Upon receipt of a final consent by the adoptee, by [each] EITHER of
the  birth  parents  and/or  by a biological sibling of the adoptee, the
agency shall release identifying information ABOUT THE CONSENTING REGIS-
TRANTS to [all] the CONSENTING registrants. Such identifying information
shall be limited to the names and addresses  of  the  CONSENTING  regis-
trants  and  shall  not  include  any other information contained in the
adoption or birth records. However, nothing in  this  section  shall  be
construed  to  prevent  the  release  of  adoption  records as otherwise
permitted by law.
  S 5. Subdivision 9 of section 4138-d  of  the  public  health  law  is
REPEALED.
  S 6. This act shall take effect immediately.

2009-S3255A (ACTIVE) - Details

Law Section:: Public Health Law
Laws Affected:: Rpld & add §4138-a, amd §§4138-b, 4138-c & 4138-d, rpld §4138-c sub 9, rpld §4138-d sub 9, Pub Health L

2009-S3255A (ACTIVE) - Summary

Relates to persons who may register for the adoption information registry; relates to birth certificates of adopted children.

2009-S3255A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3255A

 TITLE OF BILL :
An act to amend the public health law, in relation to birth
certificates for children born in foreign countries; and registration
for the adoption information registry; and repealing certain
provisions of such law relating thereto

 PURPOSE :
This bill: (1) centralizes within the Department of Health (DOH)
procedures for the filing and issuance of birth certificates for
children adopted in foreign countries; (2) cures a technical statutory
flaw that prevents the release of identifying information to
consenting parties under the Adoption Information Registry or the
Mutual Consent Voluntary Adoption Registry if both birth parents have
not registered and consented to such release; and (3) eliminates the
access of the biological siblings of adoptees to non-identifying
information available through the registries.

 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 (PHL) § 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 individual. 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 ability 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-identifying 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
immediately.

 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 1R-3
immigrant visa for the child by the United States Citizenship and
Immigration 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
pursuant to Domestic Relations Law § 111-c is reported to a local
registrar, 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
individual, 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
registered 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
individual, 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
identifying 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-c
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 identify 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
identity 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
certified copy of a birth certificate filed by the Commissioner will
be provided pursuant to PHL § 4137 or, on request, pursuant to PHL §
4174(b). 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
children 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 reviewing 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 addition, 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
issuance of a certificate of birth data, since foreign-born adoptees
will be able to obtain birth certificates under PHL § 4138-b.
However, certificates 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,
education, 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 4138-d to
permit birth parents whose parental rights had been involuntarily
terminated 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
registered 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 .. 4138-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.

2009-S3255A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3255--A
    Cal. No. 438

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 13, 2009
                               ___________

Introduced  by Sen. DUANE -- (at request of the Department of Health) --
  read twice and ordered printed, and when printed to  be  committed  to
  the  Committee  on  Health  -- reported favorably from said committee,
  ordered to first and second report, ordered  to  a  third  reading  --
  reported  favorably from said committee and committed to the Committee
  on Rules -- committee discharged, bill amended, ordered  reprinted  as
  amended and recommitted to said committee

AN ACT to amend the public health law, in relation to birth certificates
  for  children  born  in  foreign  countries;  and registration for the
  adoption information registry; and  repealing  certain  provisions  of
  such law relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 4138-a of the public health law is REPEALED  and  a
new section 4138-a is added to read as follows:
  S 4138-A. CERTIFICATE OF BIRTH DATA. ANY EXISTING CERTIFICATE OF BIRTH
DATA SHALL CONTINUE TO BE EFFECTIVE.
  S  2. Section 4138-b of the public health law, as added by chapter 329
of the laws of 2008, is amended to read as follows:
  S 4138-b. Birth certificate: foreign country  adoption.  Whenever  the
adoption  or  finalization  of  a  foreign  adoption or recognition of a
foreign adoption of a child pursuant to section one hundred eleven-c  of
the  domestic  relations  law has been reported to the [local registrar]
COMMISSIONER, the [registrar] COMMISSIONER shall [issue]  FILE  a  birth
certificate  for  the child PROVIDED THERE IS NO OTHER BIRTH CERTIFICATE
OR OTHER BIRTH RECORD ON FILE OTHER THAN IN THE COUNTRY WHERE SUCH CHILD
WAS BORN AND PROVIDED, FURTHER, THAT A CERTIFICATE OF  BIRTH  DATA  DOES
NOT  EXIST FOR THAT PERSON. Such birth certificate shall be [issued and]
filed upon receipt of: proof that the adoptive parent [or child is]  WAS
a resident of this state AT THE TIME OF ADOPTION; a copy of the adoption
documents of the jurisdiction or country in which the child was adopted;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD07530-12-9

S. 3255--A                          2

a  certified  translation of the foreign adoption documents, evidence of
the date and place of the child's birth; and evidence of  IR-3  OR  IR-4
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.  A BIRTH
CERTIFICATE FOR A FOREIGN COUNTRY ADOPTION WHICH HAS  BEEN  FILED  BY  A
LOCAL  REGISTRAR  AND ALL SUPPORTING DOCUMENTATION SHALL BE SUBMITTED BY
THE LOCAL REGISTRAR TO THE COMMISSIONER  WHO  SHALL  FILE  A  NEW  BIRTH
CERTIFICATE PURSUANT TO THIS SECTION.
  S 3. Subdivisions 2, 4, 5 and 6 of section 4138-c of the public health
law, subdivision 2 as amended by chapter 435 of the laws of 2008, subdi-
vision  4  as  amended by chapter 588 of the laws of 1999, and paragraph
(a) of subdivision 4 and subdivisions 5 and 6 as amended by chapter  469
of the laws of 2007, are amended to read as follows:
  2.  The  registry shall accept, at any time, and maintain the verified
registration transmitted by an  agency  pursuant  to  section  forty-one
hundred  thirty-eight-d of this [article] TITLE, or of the birth parents
of an adoptee if such adoptee was born in this state. The registry shall
not accept nor maintain the registration of an adoptee sooner than eigh-
teen years after the adoptee's birth, or in the case of registration  by
a  biological  sibling of an adoptee, no sooner than the longer of eigh-
teen years after the biological sibling's birth or eighteen years  after
the  adoptee's birth; provided, however, that any person whose registra-
tion was accepted may withdraw such registration prior to the release of
any identifying information. The adoptee registrant, and the  biological
sibling  registrant, shall include as part of the registration the iden-
tification, including the name and address, of known biological siblings
of the adoptee. The adoptee may upon registration or any time thereafter
elect not to have  release  of  information  by  the  authorized  agency
involved  in such adoption. The department shall establish an authorized
agency fee schedule for search costs and  registry  costs  and  services
provided by such agency in gathering and forwarding information pursuant
to this section. The fee schedule may also include costs for disseminat-
ing  information about the registry and the adoption medical information
sub-registry to the public. Such publications or brochures  may  include
information  as  to  identifying and non-identifying information, how to
register and fees charged to the registrants, and any other  information
deemed appropriate.
  4.  Upon acceptance of a registration [by an adoptee or by the biolog-
ical sibling of an adoptee] pursuant to  this  section,  the  department
shall  search  the  records  of  the department to determine whether the
adoptee's adoption occurred within the state.
  (a) If the department determines that the adoption occurred within the
state, it shall notify the court wherein the adoption occurred to submit
to the department non-identifying information as may be contained in the
records of the court and the names of the birth parents of the  adoptee.
Notwithstanding  any  other  provision of law to the contrary, the court
shall thereupon transmit to the department  non-identifying  information
as  may  be  contained in the records of the court, and the names of the
birth parents of the adoptee, provided that,  if  the  court  determines
from  its  records  that the adoption was from an authorized agency, the
court shall submit to the department only the name and address  of  such
authorized  agency and the names of the birth parents of the adoptee. In
such cases, unless the adoptee registrant  [or  the  biological  sibling
registrant]  shall  have  elected otherwise, the department shall notify
the authorized agency whose name was provided by the  court  to  release

S. 3255--A                          3

promptly to the adoptee [or biological sibling registrant] all non-iden-
tifying  information  as  may  be contained in the agency records.  Such
agency shall thereafter promptly release the non-identifying information
to  the adoptee registrant. If the adoptee registrant shall have elected
not to have the information released to him or  her  by  the  authorized
agency, the agency shall submit promptly to the department all non-iden-
tifying  information  as  may be contained in the agency records. In any
case where the agency records are incomplete, no  longer  exist  or  are
otherwise  unavailable,  the  department  shall so notify the court. The
court shall thereupon promptly submit such  non-identifying  information
as  may  be  contained  in  their  records.  If no authorized agency was
involved or if the adoptee registrant shall have  elected  not  to  have
release  of  information  by  the  authorized  agency  involved  in such
adoption, the department shall release the  non-identifying  information
to  the  adoptee  registrant. The department and/or an authorized agency
may restrict the nature  of  the  non-identifying  information  released
pursuant to this section upon a reasonable determination that disclosure
of  such  non-identifying  information  would  not  be in the adoptee's,
biological sibling's, or parent's best interest.
  (b) If the department determines that the adoption did not occur with-
in the state, it shall notify the  adoptee  registrant  that  no  record
exists of the adoption occurring within the state.
  5.  Upon  acceptance  of  a registration pursuant to this section, the
department shall search the registry to determine whether  the  adoptee,
any  biological  sibling of the adoptee, or birth parents of the adoptee
is also registered.
  (a) If the department determines the adoptee is not in contact with  a
biological  sibling under the age of eighteen and that there is a corre-
sponding registration for the adoptee, for [each] EITHER  of  the  birth
parents,  and/or  for the biological sibling registrant, it shall notify
the court wherein the adoption occurred and the department shall  notify
all  such  persons  that a corresponding match has been made and request
such persons' final consent to the release of identifying information.
  (b) If the department determines that there is no corresponding regis-
tration for the adoptee, for [each] EITHER of the birth parents,  and/or
for a biological sibling of the adoptee, it shall notify the registering
person  that  no corresponding match has been made. The department shall
not solicit or request the  consent  of  the  non-registered  person  or
persons.
  6. Upon receipt of a final consent by the adoptee, by [each] EITHER of
the  birth  parents,  and/or by a biological sibling of the adoptee, the
department shall, unless the adoptee or  biological  sibling  registrant
shall  elect  otherwise,  if  an  authorized agency was involved in such
adoption, release identifying information to such  agency;  such  agency
shall  thereafter  promptly  release  identifying  information ABOUT THE
CONSENTING REGISTRANTS  to  [all]  the  CONSENTING  registrants.  If  no
authorized  agency was involved, or if any registrant shall have elected
not to have release of the information by the authorized agency involved
in such adoption the department shall release identifying information to
[all] the CONSENTING registrants. Such identifying information shall  be
limited  to  the  names  and addresses of the CONSENTING registrants and
shall not include any other information contained  in  the  adoption  or
birth  records.  However,  nothing in this section shall be construed to
prevent the release of adoption records as otherwise permitted by law.
  S 4.  Subdivision 9 of section 4138-c of  the  public  health  law  is
REPEALED.

S. 3255--A                          4

  S  5.  Subdivisions 3, 4, and 5 of section 4138-d of the public health
law, subdivisions 3 and 4 as amended by chapter 588 of the laws of 1999,
the opening paragraph of subdivision 4 as separately amended by  chapter
504  of the laws of 1999 and paragraphs (a) and (b) of subdivision 4 and
subdivision 5 as amended by chapter 469 of the laws of 2007, are amended
to read as follows:
  3.  Upon acceptance of a registration [by an adoptee or the biological
sibling registrant] pursuant to this section, the  agency  shall  search
the  records  of the agency to determine whether the agency was involved
in such adoption.
  (a) If the agency determines that the agency was not involved in  such
adoption,  it  shall  notify the registrant that no record exists of the
adoption and refer the registrant to the department's adoption  informa-
tion  registry  operated  pursuant  to section forty-one hundred thirty-
eight-c of this [article] TITLE.
  (b) If the agency determines that the  agency  was  involved  in  such
adoption, it shall transmit the registration to the adoption information
registry  operated  by  the  department and the agency shall release the
non-identifying information, as defined in section [four  thousand  one]
FORTY-ONE hundred thirty-eight-c of this [article] TITLE, to the adoptee
registrant  [or  the  biological  sibling  registrant].  The  agency may
restrict the nature of the non-identifying information released pursuant
to this section upon a reasonable determination that disclosure of  such
non-identifying  information  would not be in the adoptee's, the biolog-
ical sibling's or parent's best interest.
  4. Upon acceptance of a registration pursuant  to  this  section,  the
department  shall  search  the  records  of  the department to determine
whether the adoptee's adoption occurred within the state. The department
shall establish an authorized agency fee schedule for search  costs  and
registry costs of an authorized agency.
  (a)  If the department determines that there is a corresponding regis-
tration for the adoptee, for [each] EITHER of the birth  parents  and/or
for a biological sibling of the adoptee, it shall notify the court wher-
ein  the  adoption  occurred  and the department shall notify the agency
that a corresponding match has been made. The agency  shall  notify  all
such  [persons] REGISTRANTS that a corresponding match has been made and
request such persons' final consent to the release of identifying infor-
mation.
  (b) If the department determines that there is no corresponding regis-
tration for the adoptee, for EITHER OF the birth parents  and/or  for  a
biological  sibling  of  the  adoptee,  it shall notify the agency which
shall notify the registering person that no corresponding match has been
made. The agency shall not solicit or request the consent of the non-re-
gistered person or persons.
  5. Upon receipt of a final consent by the adoptee, by [each] EITHER of
the birth parents and/or by a biological sibling  of  the  adoptee,  the
agency shall release identifying information ABOUT THE CONSENTING REGIS-
TRANTS to [all] the CONSENTING registrants. Such identifying information
shall  be  limited  to  the names and addresses of the CONSENTING regis-
trants and shall not include any  other  information  contained  in  the
adoption  or  birth  records.  However, nothing in this section shall be
construed to prevent  the  release  of  adoption  records  as  otherwise
permitted by law.
  S  6.  Subdivision  9  of  section  4138-d of the public health law is
REPEALED.
  S 7. This act shall take effect immediately.

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