BILL ANALYSIS
AB 372
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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.
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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.
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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.)
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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.
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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;
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(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
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"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
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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
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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.
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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. /
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(916) 319-2334