New York State Adoptee Rights Law

This is going to be a special edition of my blog posts. Instead of the usual post about a family member, I wanted to talk a little about adoption laws in New York State. Specifically, the laws which restrict the original birth certificates from being released to adoptees or their family members. So, if you’re an adoptee or know someone who is, this should be a very informative post for you that maybe be able to help you!
 
The more I became involved in helping people with their genealogy and ancestry, the more I researched and learned about NYS adoption laws. Believe it or not, NYS has one of the most restrictive laws with regard to access to an adoptee's original birth certificate.

The history of it goes a little something like this:
Tip: If you don’t want to wait to find out where we’re currently at in NYS regarding adoptee rights, skip toward the end a bit.
 
New York did not require the sealing of original birth certificates (OBCs) until 1936. The portion of the bill which restricted OBCs read:
“2. …No person shall be allowed access to such sealed records and order and any index thereof except upon an order of a judge or surrogate of the court in which the order was made or of a justice of the supreme court.  No order for disclosure or access and inspection shall be granted except on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct...”
 
Not only does the state purport to seal adoption records and OBCs forever, but it also relies upon an archaic 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. All 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 is just one case that was decided in the last couple years by New York courts. I will be quoting it from the Adoptee Rights Law website (source cited at the end of the blog).
 ​

“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 Milla for a hearing [in early 2017], 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 Milla denied the petition again in April of 2017, 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.”

To summarize, the adoptee had been born more than 100 years ago, in 1917, when original birth certificates were not sealed. 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 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.
 
The Adoptee Rights Law group surveyed adoptees across the country. Of the 101 New York adoptees who responded to their survey and reported that they had sought an OBC, four received the OBC. Four. That’s four 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 101. One percent.
 
So, what could they do instead of going through the court process? Adoptees reported that they moved on to DNA and its public registries. And nearly 75 percent of New York adoptees have done so. Which, for the record, I have helped some of those adoptees navigate their DNA results to help them find or connect with family.
 
DON’T FRET THOUGH! There has been recent progress (meaning it literally just happened less than 2 months ago in June of 2019).

“The New York legislature secured history on an extra day of the legislative session by reversing more than eight decades of discrimination against New York adopted people. With the bill moving through three committees on the final two days of an extended session, the Assembly Members voted 126-2 to pass S3419/A5494 and forward it to Governor Andrew Cuomo for signature and final enactment. If you have not been following this, the soon-to-be enacted law will:

• restore the right of all adult adoptees to request and obtain a certified copy of the “original long form line by line, vault copy birth certificate,” otherwise known as the OBC, with no restrictions other than the adoptee is at least 18 years of age at the time of the request;
• if the adoptee is deceased, allow direct line descendants or a lawful representative of the adoptee to request and obtain the OBC;
• address issues related to people born outside of New York but whose adoptions were finalized by a New York state court. If a copy of the OBC from the other jurisdiction is not available from a New York registrar, then information that would have appeared on the OBC must be provided by the adoption agency;
• address original birth certificates on file with the New York City Department of Health and Mental Hygiene, an extremely important provision because New York City currently possesses many pre-adoption birth certificates;
• address certain OBCs that may also be held by registrars in Albany, Buffalo, and Yonkers;
• be effective January 15, 2020.” (nyadopteerights.org)

TLDR: Come January 15, 2020, adoptees will be able to request their OBCs and receive them just as any of us who weren’t adopted would receive a copy of our own birth certificates! No restrictions. And all future adoptees may request the OBC at the age of 18.
 
Watch the video below of the passing of this historic bill, it gave me chills!
https://vimeo.com/340047776

Imagine for those of us who weren't adopted being told we aren't allowed access to our birth certificates. It sounds ridiculous. I'm glad NYS is finally fixing their 1936 mistake.
 
I have had people ask me, “But what if the parents don’t want to be found?” And my response is that wanting a closed adoption is different than restricting someone from seeking information about who they are. So, if there was a desire to not be found or known, then the adoptee would need to respect that once they learn who their biological parents are. But I will also say that most adoptees just want to know where they come from. It is as simple and benign as that. Working with adoptees as some of my clients has been heartwarming and heartbreaking at the same time. But I have made sure to keep them up to date with the status of this new legislation and have been able to share in their excitement over finally being able to do something that should normally be so SIMPLE, yet has been blocked off to them for their entire lives simply because they were adopted as children.

“Finding my birth family was the single most important moment of my entire life, it was (as) if I’d been holding my breath my entire life and for the first time, I could let it out. My ability to be a healthy adult depended on the chance to sit in a room with people who look like me and to feel truly known for the first time in my entire life.”
--Rebecca Dolan, (Adoption.com)

It is important to remember that these are people, no different from the rest of us. Who are we to say we wouldn’t do any different if we were in the shoes of an adopted person?
 
 
Congratulations, NYS adoptees!
I hope you find the answers you need come January (and I’d be more than happy to help). 

Sources:
http://nyadopteerights.org/we-did-it/
https://adopteerightslaw.com/nutso-world-new-york-adoptee-rights/
https://codes.findlaw.com/ny/domestic-relations-law/dom-sect-114.html