Last year I mentioned accepting nominations for the worst legislators for adoptee rights. I immediately received a few nominations, and then the request devolved to include the worst states for adoptee rights. New York was immediately nominated. Bingo.
Based on the laws of all fifty states (and DC), it is not hard to conclude that New York is one of the most restrictive states in the country when it comes to the right of an adult adoptee to get an original birth certificate upon request. Not only does the state purport to seal adoption records and OBCs forever, but it also relies upon an archaic, punitive, and expensive court process to access anything remotely identifying, with an added requirement to notify nearly everyone in your family if you seek an OBC. This includes adoptive parents, biological parents (or their appointed guardians), siblings, aunts, even spouses. Seriously. Just for requesting an original birth certificate, no matter when the birth, no matter the type of adoption.
If you want to understand how ridiculous it all is, here are two cases decided in the last two years by New York courts. One involved an adoptee who was born in 1917 and was adopted by his stepfather. The other involved a young adult who was fourteen years old when he consented to his own adoption. Both involved requests for an original birth certificate and nothing else. Both got nothing.
The cases symbolize how New York today has produced and enforced a law so punitive to adult adoptees that it has moved far beyond its own legitimacy and has entered the realm of farce.
A Rose is Not a Rose
In Re the Matter of Rose is not a typical adoptee rights case. I expect, however, that it may become more and more common as adoptees age and die— and then their children pursue a parent’s OBC. In Rose, the petitioner sought the OBC of his deceased adopted father so that his family could seek dual Italian-United States citizenship. Here’s how the appeals court summarized the case:
Petitioner seeks certified copies of his late father’s, the adoptee’s, original birth certificate so that he and his children can obtain Italian citizenship. Petitioner asserts that the adoptee would have been 96 years old at the time of the filing of the petition, that the adoptee has no siblings, and that the adoptee’s biological and adoptive parents are deceased.
Importantly, though, the adoptee’s mother was just that: the birth mother listed on both birth certificates. Her husband, the adoptee’s stepfather, was the only adoptive parent.
The trial court first denied the petition in 2014, stating that a legitimate interest in citizenship was insufficient to demonstrate good cause to unseal an OBC. Rose appealed. The appellate court first determined that Rose had in fact presented a prima facie showing of good cause to release the OBC. But the appellate court said he had not provided adequate notice of the petition to his mother (the adoptee’s widow, who was in her 90s), to his biological sister, or to the New York City Department of Health and Mental Hygiene, which held the vital records. The appeals court sent the case back to notify family members and the health department so that they could choose to participate in another court hearing.
When it came back again to Judge Rita Mella for hearing, the petitioner’s elderly mother had since died and his sister had submitted a document that consented to release of the OBC. But the New York department of health objected to release, arguing that the department “has a vested interest in maintaining the strong policy of the State of New York to afford confidentiality to all parties to an adoption.”
And despite the appellate court stating earlier that Rose had shown a prima facie case of good cause, Judge Mella denied the petition again, essentially determining that privacy rights that had not existed in New York law in 1917 trumped legitimate personal rights and interests of an adoptee and his family in pursuing Italian citizenship today.
I’m scratching my head on this. Remember, the adoptee had been born more than 100 years ago, in 1917, when original birth certificates were not sealed (New York did not require sealing of OBCs until 1936). He was adopted by his stepfather. His birth mother, who died in 1939, is on both the original and the amended birth certificates. The birth father of the adoptee—whose name on the OBC could prove eligibility for Italian citizenship—was also long gone. Yet, because of New York’s draconian law, the court required the petitioner not only to notify his biological sister and mother, but it also extended the law to create alleged privacy rights to people born in the 19th century. As Judge Mella wrote:
Petitioner argues that ‘no person’s right of privacy or expectation of confidentiality will be invaded if this Petition is granted.’ Petitioner’s counsel argued at the hearing that Robert [the adoptee] would seek the same relief if he were alive today. At issue here, however, is not only the violation of [the adoptee’s] confidentiality but also that of Robert’s biological parents.
Again, I feel compelled to point out, these are biological parents born within a generation of the Civil War, at a time before most cities had electricity, before some states even existed, and before most states even had their own adoption law on the books. This is a case where the birth mom is the mom, who never relinquished her son and told the adoptee about his birth father and his Italian heritage. Still, at least in New York, it’s a no go.
In Re Kevin (“Mr. E.”)
If Rose represents a second generation of adoptee rights in New York, then In Re Matter of Kevin E. (known as “Mr. E.”) is decidedly first generation. As in, the adoptee was fourteen years old when he was adopted, knew his mother, and maintained a relationship with her. But an original birth certificate? Denied, despite the adoptee providing one of the most honest and legitimate requests for an OBC I’ve ever seen in a reported case:
[f]or the past ten years I have had an ongoing relationship with my biological mother . . . . I honestly just want a copy of my birth certificate for my file.
This was insufficient to show good cause to unseal the OBC, even though Mr. E.—by then twenty-six years old— was “aware of his personal history” and was fourteen years old at the time he consented to his own adoption. Though Mr. E. did not provide proof of his mother’s consent, the court in a footnote said that would not have mattered:
There is no affidavit from Mr. E.’s biological mother confirming his claims regarding their relationship. However, even were such an affidavit presented, and even if the biological mother consented to the release of the original birth certificate, this would not affect the Court’s ruling because ‘[a] crucial aspect of the scheme of Domestic Relations Law § 114 is to leave the balancing of the interests of the natural parents, the adoptive parents, the adopted child, and society to the court system, and not to private parties. Parties may not circumvent the statutory scheme with their own private agreements.’
Before I go further, here’s something to remember: New York judges are no doubt highly protective of one thing: the court’s own records. The law for those records, however, is different than the law that regulates vital records. The court’s adoption records are governed by New York’s Domestic Relations law, the “section 114” cited by the judge in the Mr. E case. That is, the release of court adoption records requires all the rigmarole that the judge in the Mr. E case cited: consents from nearly everyone and “good cause” to release any information. But New York’s vital records law—contained within the Public Health Law and specifically in section 4138—simply requires a court order. No good cause, no consents from adoptive parents or birth parents or siblings or second cousins or spouses. And the public health law is the one that really matters. It’s the one that should be changed and is the one that actually matters the most in controlling the release of vital records.
Taken together, the Rose and Mr. E. cases demonstrate the absurdity of a New York law that imposes extreme notification measures and requires an impossible standard to overcome. On the one hand, an adoptee’s family is denied access to a 100-year-old birth record that could provide valuable citizenship rights within the European Union. On the other, a twenty-six year old adult, adopted only twelve years earlier as a teenager, cannot obtain a basic part and proof of an identity he already knew. Period. Case closed. That’s the nutso world of New York adoptee rights.
And Some People Think It’s Easy
Some New York legislators obviously disagree with my assessment and believe New York’s heavy-handed law works. They are either protecting people or fooling themselves. I recently came across a legislative video of Daniel O’Donnell, a seemingly progressive New York state legislator in Manhattan who opposes unrestricted OBC access. Worse, he actually believes that it is easy to get your OBC, like routine and cursory easy. This is exactly what he said about current New York state law:
The current law permits adoptees to get access to this information by going through surrogate’s court. I assisted a constituent, actually a next door neighbor of mine, who desperately wanted and needed this information, and it was granted in an almost cursory fashion.
I laughed out loud when I heard this. Some New York legislators are in denial or just plain uninformed if they believe it is a mere “cursory” matter to obtain an OBC in New York. It’s not. It’s an expensive, humiliating, and punishing system built on secrecy and an absolutely false notion of anonymity.
Here’s the truth: in the last year I surveyed adoptees across the country. Of more than 175 New York adoptees who responded and reported that they had sought an OBC, four received the OBC. Four. That’s two percent. But of these four, three actually didn’t get an OBC: two received redacted OBCs and one OBC was disclosed not to the adoptee but to a Canadian Indian tribe. So, it was actually one person out of 175. One half of one percent. That’s not remotely close to cursory.
In our same survey, adoptees also revealed indirectly how bad New York law has become. Adoptees reported that they have moved on to do what any logical person would do: turn to DNA and its public registries. Because, while about 65 percent of adoptees nationally told me they have also turned to DNA, far more New York adoptees have done so: nearly 75 percent. It turns out that far more New York adoptees use DNA for information than actually seek an OBC through New York law.
Because, honestly, if you are compelled by New York law to use a system that costs you thousands of dollars and typically ends in humiliation and denial, who wouldn’t choose instead to shell out $69 and convert a swab of spit into actual knowledge? Not me.
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Note: this post initially appeared on the website for Adoptee Rights Law Center, a core partner with the New York Adoptee Rights Coalition. The post has been modified to update relevant timeframes and to include more information about current New York law.