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