BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 372
                                                                  Page 1

          Date of Hearing:  April 27, 2009

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                      AB 372 (Ma) - As Amended:  April 21, 2009
                                           
          SUBJECT  :  ADOPTION:  ACCESS TO RECORDS

           KEY ISSUE  :  SHOULD LONG-STANDING LAW IN CALIFORNIA BE CHANGED SO  
          THAT ADULT ADOPTEES ARE ABLE TO ACCESS THEIR ORIGINAL,  
          UNREDACTED BIRTH CERTIFICATE UNLESS THE BIRTH PARENT  
          SPECIFICALLY REQUESTS THAT THE INFORMATION BE KEPT CONFIDENTIAL?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This bill seeks to provide adult adoptees with significantly  
          greater access to their original, unredacted birth certificates.  
           Under the bill, an adoptee would have access to his or her  
          original birth certificate in cases of medical necessity  
          regarding a serious health condition.  In addition, the bill  
          provides adoptees age 25 and above with access to their  
          original, unredacted birth certificates unless a birth parent  
          expressly objects, basically an opt-out process.  The current  
          system which has long been the law of California keeps the  
          information confidential unless the parties agree to the  
          release, in essence an opt-in process.

          Issues surrounding the confidentiality of adoptees' birth and  
          adoption records affect both birth parents and adoptees very  
          profoundly and very personally.  Whether a birth parent should  
          be able to protect his or her identity when choosing to give a  
          child up for adoption involves complex legal and policy issues -  
          as well as deeply personal considerations.  These issues are  
          made more complex by existing laws which provide for  
          confidentiality of records in most situations, unless both the  
          birth parents and the adopted child agree otherwise.  This bill  
          attempts to balance the interests of both adoptees and birth  
          parents in the fairest way possible.  The carefully crafted  
          compromise is sponsored by the California Adoption Reform  
          Effort.  It is opposed by groups who believe that nothing less  
          than unrestricted access to the original birth certificate for  
          adoptees who have reached adulthood is acceptable.
           








                                                                 AB 372
                                                                  Page 2

          SUMMARY  :  Allows an adult adoptee to access his or her original  
          birth certificate, as specified.  Specifically,  this bill  :  

          1)Requires the State Registrar, in cases of medical necessity  
            regarding a serious health condition, to release the original  
            and unredacted birth certificate to an adoptee, the adoptee's  
            parent or guardian, if the adoptee is a minor, or a person  
            legally authorized to make health decisions for the adoptee.   
            Defines cases of medical necessity regarding a serious health  
            condition to include a health condition for which a successful  
            treatment would involve use of parental or familial  
            information, such as a medical condition requiring a  
            direct-match tissue transplant.  

          2)Requires the State Registrar, upon request, to provide a copy  
            of the original and unredacted birth certificate to an adoptee  
            who is 25 years or older, subject to the following  
            restrictions:

             a)   If the adoption occurred before January 1, 2010,  
               requires the State Registrar to first provide the birth  
               parents with notice of the adoption and that because of a  
               law change the adoptee will be provided with the original,  
               unredacted birth certificate unless the parent objects.   
               Requires the notice to be sent to the best available  
               address for each birth parent listed on the original birth  
               certificate, return receipt requested.  Requires that the  
               original birth certificate not be provided if any of the  
               following are true:  (i) the birth parent did not receive  
               the notice, based on the fact that the State Registrar did  
               not receive the return receipt acknowledgement; (ii) less  
               than six months have elapsed since the birth parent  
               received the notice; or (iii) the birth parent signs and  
               returns a form, contained with the notice, requesting that  
               the information not be provided to the adoptee.  
             b)   If the adoption occurs on or after January 1, 2010,  
               requires the State Registrar to notify the birth parents of  
               the adoption and that the adopted child, upon attaining the  
               age of 25, shall, upon request, receive a copy of the  
               original, unredacted birth certificate unless the parent  
               objects.  Allows the birth parent to object for reasons  
               that include, but are not limited to, rape, incest,  
               religious beliefs or personal preference.  Allows a birth  
               parent who has objected to the release to withdraw that  
               objection.  








                                                                  AB 372
                                                                  Page 3


          3)Under #2, above, if two birth parents are listed on the birth  
            certificate and only one parent objects, provides that the  
            State Registrar must release the original birth certificate,  
            but first redact it to exclude information about the objecting  
            parent.

          4)Requires the State Registrar to develop and adopt any  
            necessary forms.

           EXISTING LAW  :

          1)Provides that, among other rights, all people have an  
            inalienable right to pursue and obtain privacy.  (California  
            Constitution, Article I, Section 1.)

          2)Declares that the right to privacy is a personal and  
            fundamental right protected by the California Constitution and  
            that all individuals have a right of privacy in information  
            pertaining to them.  (Civil Code Section 1798.1, the  
            Information Practices Act of 1977.)

          3)Requires the Department of Social Services (DSS), with respect  
            to adoptions in which the relinquishment for or consent to  
            adoption was signed on or after January 1, 1984, to disclose  
            the identity and address of the adoptee's birth parent to an  
            adoptee 21 years of age or older if the birth parent has  
            indicated consent to the disclosure in writing.  (Family Code  
            Section 9203.  All further statutory references are to this  
            code unless otherwise noted.)

          4)Requires DSS, at the time of the adoption, to tell the birth  
            parent that the adoptee, upon reaching age 21, may request the  
            name and address of the birth parent, and DSS must release  
            this information if the birth parent consents in writing.   
            Provides that the birth parents may check a box indicating  
            whether or not they wish their name and address to be  
            disclosed and may update this information at any time.   
            (Section 8818.)

          5)Under a mutual consent registry, permits DSS or the licensed  
            adoption agency to facilitate contact between an adult adoptee  
            and his or her birth parents if each have filed a written  
            consent with DSS or the agency.  (Section 9204.)









                                                                  AB 372
                                                                  Page 4

          6)Requires that, in an adoption proceeding, the adoption files  
            are not open to inspection by any person other than the  
            parties to the proceeding and their attorneys and DSS, except  
            upon written authority of the judge of the superior court.   
            Allows a judge to authorize any person to inspect the adoption  
            files only in exceptional circumstances and for good cause  
            approaching the necessitous.  (Section 9200.)

          7)Allows any party to the proceeding to request the court to  
            order the county clerk not to provide documents for inspection  
            or copying to any other person unless the name of the birth  
            parents or any identifying information related to them is  
            redacted.  (Section 9200.)

          8)Requires, unless otherwise requested by the adopting parent,  
            that the State Registrar issue a new birth certificate,  
            bearing the names of the adoptive parents, when an adoption is  
            recorded for a child born in California and the child's birth  
            certificate is on file with that office.  (Health and Safety  
            Code Section 102635.)

          9)Requires that the new birth certificate supplant any birth  
            certificate previously registered for the child and shall be  
            the only birth certificate open to public inspection.  (Health  
            and Safety Code Section 102680.)

           COMMENTS  :  This bill seeks to provide adult adoptees with access  
          to their original, unredacted birth certificate, subject to some  
          restrictions.  Whether a birth parent should be able to protect  
          his or her identity when choosing to give a child up for  
          adoption involves complex legal and policy issues.  These issues  
          are made more complex by existing laws which provide for  
          confidentiality of records in most situations, unless both the  
          birth parent and the child agree otherwise.  The Legislature  
          last considered opening access to adoption records in the  
          2001-2002 legislative session with AB 1349 (Pescetti).  That  
          bill, which would have permitted adult adoptees to access their  
          adoption records, did not reach the floor of the Assembly.  

          According to the author:

               Current law provides few avenues for an adult adoptee  
               to obtain the most basic information afforded to most  
               citizens - their original birth certificate. 
           








                                                                  AB 372
                                                                  Page 5

               While some records can be obtained through the  
               internet, many are open and accessible to the entire  
               public, lacking many fundamental privacy concerns.  In  
               addition, internet records are almost never complete  
               and do not provide the comfort of an Officiated  
               hard-copy of the original birth certificate.  Many  
               adoptees simply want complete, private, and accurate  
               information to understand how their own story began.   
               Some adult adoptees have spent over 20 years trying to  
               discover their identity to no avail. 
           
               . . . 
           
               AB 372 does not jeopardize the confidentiality of  
               birth records, permitting only the adoptee access to  
               their own birth certificate.
           
               AB 372 strikes a delicate balance, addressing both the  
               preferences of the birth-parents and the adoptees need  
               to know their identity.

          This bill provides access to the birth certificate in several  
          ways.  First, in cases of medical necessity regarding a serious  
          health condition, an adopted individual (or the adoptee's parent  
          or guardian, if the adoptee is a minor, or a person legally  
          authorized to make health decisions for the adoptee) may access  
          his or her original, unredacted birth certificate.  The bill  
          specifically defines cases of medical necessity regarding a  
          serious health condition to include a health condition for which  
          a successful treatment would involve use of parental or familial  
          information, such as a medical condition requiring a  
          direct-match tissue transplant.  

          Even without medical necessity, an adoptee age 25 or older may  
          still access his or her original birth certificate.  There are  
          two different standards, depending on whether the adoption was  
          finalized before or after January 1, 2010.  For children adopted  
          before January 1, 2010, the State Registrar must first send a  
          notification to the birth parents, at the best available address  
          for each parent, return receipt requested, explaining that the  
          law has changed regarding access to birth records and that the  
          adopted child will be provided a copy of the original birth  
          certificate unless the parent objects.  The State Registrar then  
          can provide a copy of the original birth certificate to the  
          adoptee unless (1) the return recipient was not acknowledged;  








                                                                  AB 372
                                                                  Page 6

          (2) the notice to the parent was sent less than six months ago;  
          or (3) the birth parent objects by signing and returning a  
          notice requesting that the birth certificate be kept  
          confidential.  This will ensure that birth parents, whose  
          children had been adopted when original birth certificates had  
          been confidential, are informed of the change in law and given  
          the opportunity to prevent the disclosure.

          For children adopted on or after January 1, 2010, the State  
          Registrar must provide birth parents with notice when their  
          child is adopted, explaining that the child will, upon request,  
          have access to his or her original birth certificate at age 25.   
          The birth parent may opt out, by written notice, for reasons  
          including, but not limited to, rape, incest, religious beliefs  
          or personal preference.  If the birth parent opts out, the  
          original birth certificate remains confidential, unless of  
          course there is a medical necessity.  

          In either case, if the birth certificate lists both parents and  
          only one parent objects to access, the adoptee may still access  
          the original birth certificate, but information about the  
          objecting parent must first be redacted.  

           California keeps birth records generally confidential  .   
          Currently, when a child born in California is adopted, the State  
          Registrar issues an amended birth certificate showing the names  
          of the adoptive parents, among other information.  Only the  
          amended certificate is available for public inspection, unless a  
          judge authorizes otherwise in exceptional circumstances.  The  
          original certificate showing the name of the birth parent is  
          sealed, along with other documents in the adoption file.

          Birth parents must be informed at the time of adoption that they  
          may provide written consent to disclose their name and address  
          when the adoptee is 21 or older.  If the adoptee requests it and  
          the birth parent has consented, the State Registrar must release  
          the information.  California also maintains a mutual consent  
          registry, through which DSS or a licensed adoption agency  
          arranges contact between birth parents and adoptees if both  
          parties have consented.  Neither DSS nor the adoption agency may  
          solicit that consent. 

           Other States  :  Like California, almost all states seal their  
          adoption records.  Most of those states allow for the release of  
          confidential information when the adoptee convinces a judge that  








                                                                  AB 372
                                                                  Page 7

          "good cause" or "special circumstances" exist.  (See, e.g., Fla.  
          Stat. Ann. ch. 63.162(2).)  For example, courts will generally  
          release the information if it will serve a medical or  
          psychiatric need and there are no alternative means to obtain  
          the information.  Courts generally have held that the desire to  
          know where one comes from is not enough for "good cause."  (See,  
          e.g., In re Maples (Mo. 1978) 563 S.W.2d 760, 766 (holding a  
          bare "psychological need to know" does not constitute good  
          cause).)

          Currently, nine states allow full or partial access to their  
          original birth certificates.  Two of those nine states - Alaska  
          and Kansas - never closed adoption records to adult adoptees.   
          The seven other states - Alabama, Delaware, Maine,  
          Massachusetts, New Hampshire, Oregon and Tennessee - have  
          allowed partial or full access to birth records only in the last  
          15 years.  These states have different rules for release of the  
          information.

           Unconditional Access Systems  :  Granting full unconditional  
          access, Kansas opens all adoption records to the adoptee at age  
          18.  In comparison, New Hampshire allows adult adoptees to  
          access only their original birth certificates.  Other records in  
          New Hampshire are only available by court order.  Maine and  
          Alaska allow the release of the original birth certificate at  
          age 18.  

          Time restrictions can exist in laws opening adoption records as  
          well.  For instance, Massachusetts has approved access for only  
          those born before July 1974, when records were sealed, or after  
          January 2008.    

           Contact Preference Systems  :  Under a contact preference system,  
          a birth parent may fill out a contact preference form and  
          express a wish not to be contacted.  However, regardless of the  
          birth parent's preference, adult adoptees still have  
          unrestricted access to their original birth certificates.   
          Additionally, an adopted person's contact with the birth parent  
          will not be penalized or legally restricted.  Alabama, Oregon,  
          and New Hampshire have contact preference forms, but allow adult  
          adoptees unrestricted access to their original birth  
          certificates regardless of the birth parent's preference.  
            
           Contact Veto Systems  :  Tennessee has created a "contact veto"  
          system, which allows the birth parent to refuse any contact by  








                                                                  AB 372
                                                                  Page 8

          the searching adoptee.  Before receiving records, adoptees must  
          sign a sworn statement that they will not contact a birth  
          relative until the state has given the party the opportunity to  
          file a contact veto.  A contact veto does not prevent the adult  
          adoptee from accessing the records but imposes criminal or civil  
          penalties if unwanted contact is made with the birth parent.  

           Disclosure Veto Systems  :  Two states, Delaware and Tennessee,  
          have disclosure veto provisions.  Delaware allows the birth  
          parent to refuse the release of any identifying information.  In  
          addition to its contact veto provision, Tennessee allows  
          biological parents to veto any release of records to  
          relinquished children who were the product of rape or incest.     


           Open Constitutionality Questions Surrounding the Right to  
          Privacy  :  The California Constitution expressly guarantees an  
          inalienable right to pursue and obtain privacy.  Since 1935 when  
          California sealed original birth certificates, California state  
          courts have not specifically addressed the birth parent's right  
          to privacy in adoption records.  In the event that adoption  
          records become unsealed, the California Supreme Court's decision  
          in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th  
          1, provides guidance on how to determine and balance privacy  
          rights against other competing factors.  Hill established a  
          three-prong test to determine a cause of action for violation of  
          the state constitutional right to privacy: (1) a legally  
          protected privacy interest, (2) a reasonable expectation of  
          privacy in the circumstances, and (3) conduct by the defendant  
          constituting a serious invasion of privacy.   
           
          For the first element of the Hill test, these adoption records  
          could implicate both informational privacy and autonomy privacy.  
           On the one hand, an open records law may not be a  
          "dissemination or misuse" of identifying information since the  
          disclosure is limited to the adult adoptee.  On the other hand,  
          these adoption records are kept confidential from the public at  
          large and may contain intimate and personal details as to why  
          the birth parent gave the child up for adoption.  Statutory law  
          further codifies the right to informational privacy in the  
          Information Practices Act of 1977.  

          The second element of the Hill test requires the plaintiff to  
          have a reasonable expectation of privacy in the information.   
          Strong arguments exist on both sides.  A birth parent may not  








                                                                  AB 372
                                                                  Page 9

          have a reasonable expectation of privacy since the process is  
          already open in various ways.  Birth records are not sealed at  
          the time of relinquishment, but rather at the time of adoption,  
          and adoptive parents, as parties to the action of adoption,  
          already have a right to view the file and may choose whether to  
          even have a new birth certificate issued and the original  
          sealed.  These choices reflect the birth parent's existing lack  
          of privacy in the adoption process.  

          However, numerous statutory provisions guarantee implied,  
          perhaps even explicit, confidentiality to the birth parent.  For  
          example, under existing law, a new, amended birth certificate  
          supplants any previously registered birth certificate and is the  
          only one open to public inspection.  Additionally, the state  
          must, at the time of the adoption, inform the birth parent that  
          the adoptee, upon reaching age 21, may request the name and  
          address of the birth parent, and the DSS must release this  
          information if the birth parent consents in writing.  The birth  
          parent is asked to check a box indicating whether or not they  
          wish their name and address to be disclosed and they are also  
          told that they can update this information at any time.  A birth  
          parent may also request the court to order the county clerk not  
          to provide documents for inspection or copying to any other  
          person unless the name of the birth parents or any identifying  
          information related to them is redacted. 
             
          The third element of the Hill test requires a serious invasion  
          of the privacy interest by the defendant.  The Hill Court stated  
          that an actionable invasion of privacy must be sufficient in  
          "nature, scope, and actual or potential impact to constitute an  
          egregious breach of the social norms underlying the privacy  
          right."  Having relied on the confidentiality guaranteed by the  
          system, birth parents may argue that they face a serious  
          invasion of privacy.  

          Even if a court finds a protected right to privacy, this right  
          is not absolute and must be balanced against other important  
          interests.  The adoptee has an important interest in accessing  
          information about his or her origins.  Nevertheless, while some  
          states have recently opened their adoption records, the great  
          majority of states have struck the balance in favor of the  
          birthparent's confidentiality.  Moreover, a California court may  
          rely upon the unique privacy provision of the California  
          Constitution to strike down an attempt to open adoption records.









                                                                  AB 372
                                                                  Page 10

           ARGUMENTS IN SUPPORT  :  California Adoption Reform Effort writes  
          that this bill "provides an important step in bringing  
          California's adoption policies in line with current best  
          practices in adoption.  This measure is one that provokes  
          emotional responses on both sides of the issue.  We deeply  
          appreciate [the] willingness to find common ground, and  
          sincerely believe that tens of thousands of Californians will  
                                                 benefit from the dignity of having access to their original  
          birth record."
           
            ARGUMENTS IN OPPOSITION  :  Some groups that support increasing  
          access to birth records of adopted children, including  
          California Open, Bastard Nation and Bay Area Birthmothers  
          Association, oppose the current version of the bill as not going  
          far enough, calling it a "travesty of the civil rights of adult  
          adopted persons in California."  They insist that adult adoptees  
          be given absolute, unrestricted access to their original birth  
          certificates "as is enjoyed by all other citizens of  
          California."  Moreover, they argue that the notice for birth  
          parents established by the bill is "unwieldy and ineffective."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support (current version of the bill):
           
          California Adoption Reform Effort

           (Support to a previous version of the bill):  
          American Adoption Congress
          10 individuals

           Opposition (current version of the bill):

           Bastard Nation
          Bay Area Birthmothers Association
          California Adoptive Parents For Open Records
          California Open
          Ethica

           (Opposition to a previous version of the bill):  
          Academy of California Adoption Lawyers (unless amended)
          Family Law Section of the State Bar
          One individual
           
          Analysis Prepared by  :  Leora Gershenzon and Edward Ahn / JUD. /  








                                                                  AB 372
                                                                  Page 11

          (916) 319-2334