Senate Bill S5269A

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5269

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by Sens. MONTGOMERY, LARKIN -- read twice and ordered print-
  ed, and when printed to be committed to the Committee on Health

AN ACT to amend the public health law and the domestic relations law, in
  relation to enacting the "bill of adoptee rights"

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  public health law is amended by adding a new section
4138-e to read as follows:
  S 4138-E. BILL OF ADOPTEE RIGHTS. 1. THIS SECTION SHALL BE  KNOWN  AND
MAY BE CITED AS THE "BILL OF ADOPTEE RIGHTS".
  2. THE LEGISLATURE HEREBY STATES ITS INTENTION TO ACKNOWLEDGE, SUPPORT
AND  ENCOURAGE  THE LIFE-LONG HEALTH AND WELL-BEING NEEDS OF PERSONS WHO
HAVE BEEN AND WILL BE ADOPTED IN THE STATE OF NEW YORK. THE  LEGISLATURE
FURTHER  RECOGNIZES  THAT  THE DENIAL OF ACCESS TO ACCURATE AND COMPLETE
MEDICAL AND SELF-IDENTIFYING DATA OF ANY RESIDENT,  KNOWN  AND  WILFULLY
WITHHELD  BY OTHERS, MAY RESULT IN THAT RESIDENT SUCCUMBING TO PREVENTA-
BLE DISEASE, PREMATURE DEATH OR OTHERWISE UNHEALTHY LIFE, IS A VIOLATION
OF THAT RESIDENT'S CIVIL RIGHTS AND IS CONTRARY TO THE TENETS OF  GOVER-
NANCE. AS SUCH, THE PROVISIONS OF THIS SECTION SEEK TO ESTABLISH CONSID-
ERATIONS  UNDER THE LAW FOR ADOPTED PERSONS EQUAL TO SUCH CONSIDERATIONS
PERMITTED BY LAW TO ALL NON-ADOPTED  RESIDENTS;  THIS  SECTION  DOES  SO
WHILE  PROVIDING  FOR  THE PRIVACY OF AN ADOPTED RESIDENT AND HIS OR HER
BIRTH AND ADOPTIVE FAMILIES.
  3. (A) NOTWITHSTANDING ANY OTHER PROVISION OF  LAW,  WHEN  AN  ADOPTED
PERSON  ATTAINS  THE  AGE  OF EIGHTEEN YEARS, THAT PERSON SHALL HAVE THE
RIGHT TO RECEIPT OF A CERTIFIED COPY OF HIS OR HER ORIGINAL (LONG  FORM,
LINE  BY  LINE  VAULT  COPY) BIRTH CERTIFICATE AND ANY CHANGE HIS OR HER
BIRTH PARENT OR PARENTS MAY HAVE  ATTACHED  TO  THAT  CERTIFICATE,  UPON
APPLICATION,  PRESENTATION OF PROOF OF IDENTIFICATION AND THE PAYMENT OF
A NOMINAL FEE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11168-01-9

              

S. 5269                             2

  (B) WHEN IT SHALL BE IMPOSSIBLE THROUGH GOOD-FAITH EFFORTS TO  PROVIDE
A  COPY  OF  AN ADULT ADOPTED PERSON'S ORIGINAL BIRTH CERTIFICATE (AS IN
THE CASE OF AN ADOPTED PERSON BORN OUTSIDE OF, BUT ADOPTED  WITHIN,  THE
STATE  OF  NEW  YORK),  THE ADULT ADOPTED PERSON SHALL HAVE THE RIGHT TO
SECURE  FROM  A  COURT OF COMPETENT JURISDICTION OR THE ADOPTION AGENCY,
THE TRUE AND CORRECT IDENTIFYING INFORMATION THAT WOULD HAVE APPEARED ON
HIS OR HER ORIGINAL BIRTH CERTIFICATE. IN SUCH CASE THE AGENCY SHALL  BE
HELD HARMLESS FROM ANY LIABILITY ARISING OUT OF THE DISCLOSURE.
  4.  (A)  A  BIRTH PARENT MAY AT ANY TIME REQUEST FROM THE DEPARTMENT A
CONTACT PREFERENCE FORM THAT SHALL ACCOMPANY A BIRTH CERTIFICATE  ISSUED
UNDER  THIS TITLE. THE CONTACT PREFERENCE FORM SHALL PROVIDE THE FOLLOW-
ING INFORMATION TO BE COMPLETED AT THE OPTION OF THE BIRTH PARENT:
  (1) I WOULD LIKE TO BE CONTACTED.
  (2) I WOULD PREFER TO BE CONTACTED ONLY THROUGH AN INTERMEDIARY.
  (3) I PREFER NOT TO BE CONTACTED AT THIS TIME. IF I DECIDE LATER  THAT
I  WOULD  LIKE TO BE CONTACTED, I WILL SUBMIT AN UPDATED CONTACT PREFER-
ENCE FORM TO THE DEPARTMENT. I HAVE COMPLETED AN UPDATED MEDICAL HISTORY
FORM AND HAVE FILED IT WITH THE DEPARTMENT.
  THE MEDICAL HISTORY FORM SHALL BE IN A FORM PRESCRIBED BY THE  DEPART-
MENT AND SHALL BE SUPPLIED TO THE BIRTH PARENT UPON REQUEST OF A CONTACT
PREFERENCE FORM FROM THE DEPARTMENT.
  ONLY  THOSE  PERSONS  WHO  ARE AUTHORIZED TO PROCESS APPLICATIONS MADE
UNDER THIS TITLE MAY PROCESS  CONTACT  PREFERENCE  AND  MEDICAL  HISTORY
FORMS.
  THE  MEDICAL HISTORY FORM AND CONTACT PREFERENCE FORM ARE CONFIDENTIAL
COMMUNICATIONS FROM THE BIRTH PARENT TO THE PERSON NAMED ON  THE  SEALED
BIRTH  CERTIFICATE AND SHALL BE PLACED IN A SEALED ENVELOPE UPON RECEIPT
FROM THE BIRTH PARENT. THE SEALED ENVELOPE SHALL  BE  MATCHED  WITH  AND
PLACED IN THE FILE CONTAINING THE SEALED BIRTH CERTIFICATE.
  THE SEALED ENVELOPE CONTAINING THE CONTACT PREFERENCE FORM AND MEDICAL
HISTORY  FORM  SHALL  BE  RELEASED TO A PERSON REQUESTING HIS OR HER OWN
ORIGINAL BIRTH CERTIFICATE UNDER THIS TITLE. THE CONTACT PREFERENCE FORM
AND MEDICAL HISTORY FORM ARE A  PRIVATE  COMMUNICATION  FROM  THE  BIRTH
PARENT TO THE PERSON NAMED ON THE SEALED BIRTH CERTIFICATE AND NO COPIES
OF THE FORMS SHALL BE RETAINED BY THE DEPARTMENT.
  (B)  UPON  RECEIPT OF UPDATED HEALTH INFORMATION, THE DEPARTMENT SHALL
PROVIDE NOTICE OF ITS RECEIPT TO THE ADOPTIVE PARENT  OR  PARENTS  OF  A
MINOR  CHILD  OR DIRECTLY TO THE ADOPTED PERSON WHO HAS ATTAINED THE AGE
OF EIGHTEEN, AS PROVIDED BY SECTION FORTY-ONE HUNDRED THIRTY-EIGHT-C  OF
THIS TITLE. SAID NOTIFICATION WILL INCLUDE INSTRUCTIONS FOR RETRIEVAL OF
SAID INFORMATION, WHICH SHALL BE NON-IDENTIFYING.
  5.  WITHIN TWO YEARS FOLLOWING THE EFFECTIVE DATE OF THIS SECTION, THE
GOVERNOR SHALL APPOINT A VOLUNTARY CITIZENS TASK FORCE TO REVIEW, ASSESS
AND REPORT ON THE PROGRESS AND ADMINISTRATION OF INITIATIVES ESTABLISHED
PURSUANT TO THIS SECTION. THE TASK FORCE, WHICH SHALL BE  REPRESENTATIVE
OF ADOPTED PERSONS, BIRTH PARENTS, ADOPTIVE PARENTS AND ADOPTION PROFES-
SIONALS, SHALL MAKE RECOMMENDATIONS TO IMPROVE THE ADMINISTRATION OF THE
INITIATIVES  ESTABLISHED IN THIS SECTION. THE TASK FORCE SHALL HAVE FULL
ACCESS TO THE DEPARTMENT'S, THE OFFICE OF CHILDREN AND FAMILY  SERVICES'
AND  THE  FAMILY  AND SURROGATE COURTS' FILES OF NON-IDENTIFYING STATIS-
TICAL DATA, INCLUDING THE METHODS OF ITS COLLECTION  AND  STANDARDS  FOR
QUALITY  CONTROL.  WITHIN ONE YEAR OF ITS CREATION, THE TASK FORCE SHALL
SUBMIT A WRITTEN REPORT TO THE LEGISLATURE AND THE PUBLIC INCLUDING, BUT
NOT LIMITED TO, THE FOLLOWING:
  (A) THE NUMBER OF ORIGINAL CERTIFIED BIRTH CERTIFICATES  REQUESTED  BY
ADOPTED PERSONS;

S. 5269                             3

  (B)  THE  NUMBER  OF ORIGINAL CERTIFIED BIRTH CERTIFICATES PROVIDED TO
ADOPTED PERSONS;
  (C)  THE  NUMBER  OF  CONTACT  PREFERENCES  FILED  BY  BIRTH PARENT OR
PARENTS; AND
  (D) THE NUMBER OF CONTACT PREFERENCES RESCINDED  BY  BIRTH  PARENT  OR
PARENTS.
  S  2.  Subdivision  5  of  section  4138  of the public health law, as
amended by chapter 201 of the laws  of  1972,  is  amended  to  read  as
follows:
  5.  Thereafter,  when  a certified copy or certified transcript of the
certificate of birth of such a person, or a certification of  birth  for
such  person  is  issued,  it shall be based upon the new certificate of
birth, except when an order of a court of competent  jurisdiction  shall
require  the  issuance of a copy of the original certificate of birth OR
UPON A WRITTEN NOTARIZED REQUEST BY THE ADULT ADOPTED PERSON HIMSELF  OR
HERSELF ONCE PROPER PROOF OF IDENTITY IS PROVIDED TO THE REGISTRAR.
  S  3.  Paragraph  (b)  of  subdivision 3 of section 4138 of the public
health law, as added by chapter 201 of the laws of 1972, is  amended  to
read as follows:
  (b)  Thereafter,  when a verified transcript or certification of birth
of such  person is issued by the registrar, it shall be based  upon  the
new  certificate, except when an order of a court of competent jurisdic-
tion shall require the issuance of  a  verified  transcript  or  certif-
ication  based upon the original local record of birth OR UPON A WRITTEN
NOTARIZED REQUEST BY THE ADULT ADOPTED PERSON HIMSELF  OR  HERSELF  ONCE
PROPER PROOF OF IDENTITY IS PROVIDED TO THE REGISTRAR.
  S  4.  Subdivision  7  of  section  4138  of the public health law, as
amended by chapter 644 of the laws  of  1988,  is  amended  to  read  as
follows:
  7.  Whenever  the  commissioner  makes a new birth certificate for any
person pursuant to the provisions of subdivision one of this section, he
OR SHE shall forward to such person, if eighteen years of age  or  more,
[or  to the parents of such person,] a certified copy, a certified tran-
script [or] AND a certification of birth, [whichever he deems  appropri-
ate under the circumstances,] without making any charge therefor.
  S  5. Section 4138 of the public health law is amended by adding three
new subdivisions 8, 9 and 10 to read as follows:
  8. (A) AN ADOPTED PERSON EIGHTEEN YEARS OF AGE OR OLDER, OR THE  BIRTH
PARENT  OR  PARENTS,  MAY  SUBMIT TO THE REGISTRAR A NOTICE OF CHANGE OF
NAME AND/OR ADDRESS AND  SUCH  INFORMATION  SHALL  BE  ATTACHED  TO  THE
ORIGINAL BIRTH CERTIFICATE OF THE ADOPTED PERSON.
  (B)  THE  REGISTRAR  SHALL  DISCLOSE TO THE BIRTH PARENT OR PARENTS AT
SUCH PARENT'S OR PARENTS' REQUEST, THE MOST CURRENT NAME AND ADDRESS  OF
AN  ADOPTED  PERSON  IF THAT ADOPTED PERSON HAS REQUESTED SO BY FILING A
NOTARIZED LETTER WITH THE REGISTRAR.
  9. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN AN ADOPTED  PERSON
ATTAINS  THE AGE OF EIGHTEEN YEARS, HE OR SHE SHALL HAVE THE RIGHT, UPON
APPLICATION, PROOF OF IDENTITY AND PAYMENT OF A NOMINAL FEE, TO A CERTI-
FIED COPY OF HIS OR HER ORIGINAL LONG FORM, LINE  BY  LINE,  VAULT  COPY
BIRTH CERTIFICATE.
  10.  THE  DEPARTMENT  SHALL  ACCEPT  ADDITIONAL INFORMATION FROM BIRTH
RELATIVES OF AN ADOPTED PERSON AND SHALL UPDATE ITS RECORDS  CONTINUOUS-
LY, USING INFORMATION RECEIVED FROM SUCH BIRTH RELATIVES.  WITHIN NINETY
DAYS  OF  RECEIPT,  THIS DATA WILL BE PROVIDED TO THE ADOPTIVE PARENT OR
PARENTS OF A MINOR CHILD OR  DIRECTLY  TO  AN  ADOPTED  PERSON  WHO  HAS
ATTAINED THE AGE OF EIGHTEEN OR TO HIS OR HER LEGAL REPRESENTATIVE.

S. 5269                             4

  S  6.   Paragraph (b) of subdivision 3 of section 4138-d of the public
health law, as amended by chapter 588 of the laws of 1999, is amended to
read as follows:
  (b)  If  the  agency  determines  that the agency was involved in such
adoption, it shall transmit the registration to the adoption information
registry operated by the department and the  agency  shall  release  the
non-identifying  information,  as  defined  in section four thousand one
hundred thirty-eight-c of this [article] TITLE, to the  [adoptee  regis-
trant] ADOPTED PERSON or the biological sibling registrant.  [The agency
may  restrict  the  nature  of  the non-identifying information released
pursuant to this section upon a reasonable determination that disclosure
of such non-identifying information would not be in the  adoptee's,  the
biological sibling's or parent's best interest.]
  S  7. Section 4104 of the public health law, as amended by chapter 435
of the laws of 2008, is amended to read as follows:
  S 4104. Vital statistics; application of article.  The  provisions  of
this  article  except  for  the provisions contained in paragraph (i) of
subdivision two of section four thousand one hundred, section four thou-
sand one hundred three, subdivision two of  section  four  thousand  one
hundred  thirty-five,  section  four thousand one hundred thirty-five-b,
subdivision eight of section four  thousand  one  hundred  seventy-four,
paragraphs  (b) and (e) of subdivision one, PARAGRAPH (B) OF SUBDIVISION
THREE, AND SUBDIVISIONS FIVE, SEVEN, EIGHT, NINE AND TEN of section four
thousand one hundred thirty-eight, subdivision eleven  of  section  four
thousand  one hundred thirty-eight-c, PARAGRAPH (B) OF SUBDIVISION THREE
OF SECTION FOUR THOUSAND ONE HUNDRED THIRTY-EIGHT-D, SECTION FOUR  THOU-
SAND  ONE  HUNDRED  THIRTY-EIGHT-E and section four thousand one hundred
seventy-nine of this article, shall not apply to the city of New York.
  S 8. Subdivision 1 of section 114 of the domestic  relations  law,  as
amended by chapter 751 of the laws of 1989 and designated by chapter 601
of the laws of 1994, is amended to read as follows:
  1.  If satisfied that the best interests of the adoptive child will be
promoted thereby, the judge or surrogate shall make an  order  approving
the  adoption and directing that the adoptive child shall thenceforth be
regarded and treated in all  respects  as  the  child  of  the  adoptive
parents  or  parent.  In  determining  whether the best interests of the
adoptive child will be promoted by the adoption, the judge or  surrogate
shall give due consideration to any assurance by a LOCAL commissioner of
social  services that he OR SHE will provide necessary support and main-
tenance for the adoptive child pursuant to the social services law. Such
order shall contain the full name, date and place of birth and reference
to the schedule annexed to the petition containing the  medical  history
of  the  child  in  the  body  thereof and shall direct that the child's
medical history, heritage of the  BIRTH  parents,  which  shall  include
nationality,  ethnic  background and race; education, which shall be the
number of years of school completed by the BIRTH parents at the time  of
the  birth  AND  ALSO  AT  THE  TIME OF SURRENDER of the adoptive child;
general physical appearance of the BIRTH parents  at  the  time  of  the
birth  AND  ALSO  AT  THE TIME OF SURRENDER of the adoptive child, which
shall include height, weight, color of hair, eyes, skin;  occupation  of
the  BIRTH  parents  at  the  time  of the birth AND ALSO AT THE TIME OF
SURRENDER of the adoptive child; health and medical history of the BIRTH
parents at the time of the birth AND ALSO AT THE TIME  OF  SURRENDER  of
the  adoptive  child,  including all available information setting forth
conditions or diseases believed to be hereditary, any drugs  or  medica-
tion  taken  during  the  pregnancy by the child's mother; and any other

S. 5269                             5

information which may be a factor influencing  the  child's  present  or
future  health,  INCLUDING THE talents, hobbies and special interests of
THE BIRTH parents as contained in the  petition,  be  furnished  to  the
adoptive  parents.  IN RECOGNITION OF THE IMPERATIVE LIFELONG IMPORTANCE
OF SUCH INFORMATION FOR THE HEALTH AND WELL-BEING OF THE ADOPTED PERSON,
IT SHALL BE THE DUTY OF THE LAW GUARDIAN AS PROVIDED FOR BY SECTIONS TWO
HUNDRED FORTY-ONE, TWO HUNDRED FORTY-TWO, TWO HUNDRED FORTY-NINE AND TWO
HUNDRED FORTY-NINE-A OF THE FAMILY COURT  ACT  AND/OR  THE  GUARDIAN  AD
LITEM  AS  PROVIDED FOR BY SECTIONS FOUR HUNDRED TWO, FOUR HUNDRED THREE
AND FOUR HUNDRED FOUR OF THE SURROGATE'S COURT PROCEDURE ACT  TO  ENSURE
THE  COMPREHENSIVE  COMPLETION  AND  FILING  OF ALL THE ABOVE REFERENCED
INFORMATION PRIOR TO THE  ACCEPTANCE  OF  THE  TERMINATION  OF  PARENTAL
RIGHTS  OR THE ENTRY OF A CERTIFICATE OF ADOPTION. IT SHALL BE DEEMED BY
THAT LEGAL REPRESENTATIVE THAT SUCH INFORMATION IS ALWAYS  IN  THE  BEST
INTEREST  OF THE CHILD AND IS A PROTECTED RIGHT. PRIOR TO TERMINATION OF
DUTIES, SUCH LAW  GUARDIAN  OR  GUARDIAN  AD  LITEM  SHALL  PROVIDE,  AS
DIRECTED  BY  SECTION  FORTY-ONE  HUNDRED  THIRTY-EIGHT-C  OF THE PUBLIC
HEALTH LAW AND SECTIONS THREE HUNDRED SEVENTY-THREE  AND  THREE  HUNDRED
SEVENTY-THREE-A  OF THE SOCIAL SERVICES LAW, TO THE RESPECTIVE RESPONSI-
BLE PARTIES ALL SUCH COLLECTED DATA, AND PROVIDE  AN  AFFIDAVIT  TO  THE
COURT REPORTING ALL DILIGENT EFFORTS TO OBTAIN SUCH DATA. A COPY OF SUCH
AFFIDAVIT  SHALL  BE  APPENDED  TO  THE ORIGINAL AND ANY AND ALL AMENDED
BIRTH CERTIFICATES. If the judge or surrogate  is  also  satisfied  that
there  is  no  reasonable  objection to the change of name proposed, the
order shall direct that the name of the adoptive child be changed to the
name stated in the agreement of adoption and that henceforth he  OR  SHE
shall  be  known  by  that  name. All such orders made by a family court
judge of Westchester county  since  September  first,  nineteen  hundred
sixty-two,  and on file in the office of the county clerk of such county
shall be transferred to the clerk of the family court  of  such  county.
Such  order  and  all the papers in the proceeding shall be filed in the
office of the court granting the adoption and the order shall be entered
in books which shall be kept under seal and which shall  be  indexed  by
the  name  of  the adoptive parents and by the full original name of the
child. Such order, including orders heretofore entered, shall be subject
to inspection and examination only  as  hereinafter  provided.  Notwith-
standing the fact that adoption records shall be sealed and secret, they
may  be  microfilmed  and  processed  pursuant to an order of the court,
provided that such order  provides  that  the  confidentiality  of  such
records be maintained. If the confidentiality is violated, the person or
company  violating it can be found guilty of contempt of court. The fact
that the adoptive child was born out of wedlock shall in no case  appear
in such order. The written report of the investigation together with all
other  papers  pertaining  to the adoption shall be kept by the judge or
surrogate as a permanent record of his OR HER court and such papers must
be sealed by him OR HER and withheld from inspection. No certified  copy
of  the  order of adoption shall issue unless authorized by court order,
except that certified copies may issue to the agency or agencies in  the
proceeding  prior  to  the  sealing  of the papers. Before the record is
sealed, such order may be granted upon written ex parte  application  on
good cause shown and upon such conditions as the court may impose. After
the  record  is  sealed,  such  order may be granted only upon notice as
hereinafter provided for disclosure or access and inspection of records.
The clerk upon request of a person  or  agency  entitled  thereto  shall
issue  certificates of adoption which shall contain only the new name of
the child and the date and place of birth of the child, the name of  the

S. 5269                             6

adoptive  parents  and  the  date  when and court where the adoption was
granted, which certificate as to the facts recited  therein  shall  have
the same force and effect as a certified copy of an order of adoption.
  S  9. Section 114 of the domestic relations law is amended by adding a
new subdivision 5 to read as follows:
  5. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN AN ADOPTED  PERSON
ATTAINS  THE  AGE  OF EIGHTEEN YEARS, SUCH ADOPTED PERSON SHALL HAVE THE
RIGHT, UPON APPLICATION, PROOF OF IDENTITY AND PAYMENT OF A NOMINAL FEE,
TO A CERTIFIED COPY OF HIS OR HER ORIGINAL  LONG  FORM,  LINE  BY  LINE,
VAULT COPY BIRTH CERTIFICATE.
  S 10. This act shall take effect on the first of January next succeed-
ing  the  date  on  which it shall have become a law, provided, however,
that, effective immediately, the commissioner of health is  directed  to
promulgate  such  rules and regulations as may be necessary to carry out
the provisions of this act.