Will UT Be Held In Contempt Over Birth Certificates?

Somehow the last post (the one about Jason Patric) has generated some extended discussion of birth certificates.   These come up here from time to time.   (You’d find they warrant there own tag.)  I always approach the topic with some hesitation because they seem to inspire extremely strong feelings.    But still, they are fascinating documents and they raise critical issues, so here we are again.

For starters, I’d suggest you read the most recent birth certificate post I wrote.    It just saves time not to repeat myself and I’ve read it over and don’t have anything different to say about the basics.   The bottom line is that in the US, for whatever reasons, birth certificates are very curious documents.

Parts of them record historical facts:  Where and when a child was born, say.  What I mean is that if it says a child was born at 3:23 PM on May 19th, 2014 than that is a record of an historical event that happened at a particular time–the birth of this child.   There’s no basis to go back and change a historical record unless it was initially recorded wrongly.

They also record (and I guess I haven’t really talked much about this) the sex of the child.   Now you could view sex as a historical fact–essentially reflecting the observations of some attending medical personage (basically “this child had a penis”)   If that’s what it is, then here too you wouldn’t go back and change it unless it turned out the observation was unreliable.  (Anyone read Middlesex?)   But in a number of states, including Washington, the sex listed on the birth certificate is a reflection of the present gender identity of the individual–which means that if you transition from male to female you can get a new birth certificate with a new sex on it.   In this case, it isn’t a historical record-it’s an identity document.  The point to take away is that state differ about this.

And then there are the places where they list “parents” or “mother” and “father.”   Here again there is general agreement among the states (unlike the gender box), but it isn’t what everyone expects.  Being listed as a parent on a birth certificate is a reflection of legal status.   This is why when a child is adopted a new birth certificate issues–because the child has new legal parents.  (That is precisely what adoption accomplishes–giving a child new legal parents.)

Now if birth certificates reflected genetic parentage, then there would be no reason to issue new ones, save to correct mistakes.   Similarly, if birth certificates actually recorded the identity of the woman who gives birth (which is frankly what I think it sounds like they do) you would have no reason to change them.   It’s perfectly possible to imagine a system in which this is what birth certificates did.  But it is not an accurate description of what our system does.

I  am aware that this makes many people angry and is upsetting to some.   Please note that I am not offering a defense of the current system of birth certificates–just a description.  This is not about what they ought to be, but about what they are.

All of which has taken way longer than it should, but on to Utah.   Utah, like all other states, generally issues new birth certificates to adoptive parents.   But it seems that the Utah Department of Health won’t issue a new birth certificate to  Kimberly and Amber Leary, who are both legal parents of their daughter.  The problem?  It’s two women.   (The story mentions a second-parent adoption.  This leads me to believe one woman gave birth to the child and is on the birth certificate while the other woman adopted the child.)

Their lawyer has taken the unusual step of seeking to hold the Department of Health in contempt.   It is often part of an adoption that the state is directed to issue a new birth certificate.  Failure to comply with a court order can indeed amount to contempt.

It’s important to recognize that the issue here really isn’t whether birth certificates should be changed for adoptive parents.  UT does change birth certificates for adoptive parents–for better or for worse.  This is about whether all adoptive parents will be treated equally or whether some will be treated better than others.   It’s not the first time it’s come up, but it is still worth keeping an eye on.


24 responses to “Will UT Be Held In Contempt Over Birth Certificates?

  1. a birth certificate, as i see it, serves the same purpose for a baby, as a state ID does for an adult.
    take my drivers license. it includes physical details- a picture, which must be updated and my physical appearance change, my height, my eye color. it includes social details- my name, my address. what an ID does is to pinpoint exactly WHO this person is by tying physical, factual criteria to the social identity- the name.
    how can we identify a baby? what physical, historical facts can we use? a picture is of little use because babies change so fast. What we’ve got is the facts of the birth. so these we must use and they must be accurate. otherwise, we could be talking about any kid at all, not this kid in particular.
    sometimes information changes. say i decide to get married and adopt my husband’s name. i cant just show up and apply for a passport under my new name. I have to bring proof that my new name and my old name is the same person- like showing a marriage license for instance. When identities change, there must be proof, and transparency.
    Same thing for children. Say we change the name of the legal parents on the birth certificate. That’s cool, but there has to be supporting documentation as to why the change was made. like an adoption order or something. and one can not simply discard the original documents with the original name because then there is no proof, no record, to tranparency as to which baby the adoption order applied to. was it this one or that one, and as long as its just a baby maybe no one should bother to care?
    But The state does NOT throw these original birth certificates out. they can’t because otherwise there can be no transparent, conclusive identification of that child. The only problem as I see it is when they fail to provide these documents to the people involved. imagine a state agency that compounded my adult ID.
    as for medical records, that is a function of birth certificate data, but its only a secondary function. its like, since we are collecting all this data already, might as well put it to use. it’s not the primary function. and its understood that not all elements of birth certificate data are accurate and should be treated as a rough estimate only. so i’m not reallyconcerned about the mistaken medical info aspect.

    • I think this is a useful way to think about it. If you legally change your name and get new ID, it’s not a false ID. It’s a revised ID that reflects your current legal name.

      I’m not against creating a separate document that would state genetic parentage, you know. But that’s not the document I’d have schools require when you go to register a child. For that I think you do need a document that shows legal parentage. So you’d have two sets of documents.

      The other thing Kisrita makes me think about is this: Genetic parentage does seem to me to be private–like a medical record. (This does not mean the child doesn’t have access to it–but the general public doesn’t.) On the other hand, legal parentage should probably be public–like marital status. This means I’d want to treat the two sets of documents differently in that regard.

      • And when legal custody changes due to a court awarding full custody to one parent – do you strip that used to be legal parent and amend the birth certificate again?

        I don’t have a problem with my ABC, I do have a problem with others being denied what I have proudly hanging on my wall, my OBC.

        Regardless of all of that. AP’s are now being required by some professionals to provide the adoption paperwork as well. Whether it is legal or not I have no idea but I do understand the feeling the need to protect against a lawsuit.

        I have said before seeing as we currently have both a long-form and short-form version of the OBC – create a genetic and legal field to fill in, some with have different names, others will have duplicate names. Short form is all that is needed for most things (legal parents showing) with the exception of first time passports for adults.

        • When custody changes the parents remain the same, so you don’t change the BC. Indeed, it’s important that you don’t because of a custodial parent takes a kid to Canada it’s important that the border folks can check who the other legal parent is. (You have to have permission.)

          You’re right about long form/short form. This could be a way to move towards what we’ve been talking about. But I think listing genetic parents officially on any document would be quite controversial–it’s never been the custom. I’m not saying we shouldn’t–just that it would be hard to get it done because there’s no precedent.

          • Julie,
            BC’s listing only one legal parent are quite common. I doubt that Canada would deny entry if only one parent was listed.

            You brought up the need to list the legal parents for enrolling kids in school, etc., if that is the case then shouldn’t it only be the legal custodial parent on the ABC, or are both legal parents allowed to make decisions like that, when they don’t have custody? I’m challenging your rationalization for it as a legal parentage certificate vs a birth certificate which is how I view it. (I’m not against the ABC but it is created by legal fiction depending, I guess, on which it is – a birth certificate (yes) or a legal parentage certificate (no)). And if it is a legal parentage certificate then the child doesn’t actually have id until we get a DL or passport? So if we have neither, how do we get a marriage license?

            And listing genetic parents would be quite controversial? since when, birth certificates have been around for a long time and at least the mother up until recently was pretty much a given to be the genetic parent, father perhaps, not but it’s certainly not controversial, What is still controversial to many is marriage between two people who are the same gender, adopting a child and wanting two parents of the same gender listed on the child’s birth certificate that historically shows the mother and the father….

            (you know there was a time when adoption did not change the birth certificate, nor the child’s name – that was the norm in the first half of the last century)

            • You’re quite right about birth certificate’s with one name on them–I think I expressed myself poorly. Here’s what I was thinking: If a child has two legal parents, then there are two names on the BC. (At least most of the time–it’s supposed to be that way.) If one parent has custody and the other does not, the BC isn’t changed. If one of those parents takes the child to Canada, the border people may ask to see the BC. If they see a second name on it and only one parent travelling, then they’ll ask for an affidavit from the absent parent giving permission to take the child out of the US. This is to prevent evading court orders. This is why it is important that the second name stays on the birth certificate even if the person isn’t a custodial parent.

              On the school enrollment point: In general courts strongly favor joint legal custody (which means joint decisions making) even when there isn’t joint physical custody (where the child lives). That doesn’t really answer your question, but it is a distinction. I don’t know how school districts deal with legal parents who do not have the right to make decisions for their children. You do occasionally see litigation around this, though.

              The reason I think it would be controversial to list genetic parents on the BC is because it’s not been our practice in the past and change seems to be hard. It is about the men, as you suggest. Husbands are always listed on birth certificates without any regard for genetics. Listing genetic parents means, I think, doing genetic testing universally. That’s the controversy I was thinking of.

              True enough about our history. I don’t even think birth certificates are that old…..

        • or we have a long form birth certificate, and a short form parentage certificate which isn’t even called a birth certificate at all and is used for all legal purposes, and these forms are standardized so that everyone uses them.
          you have to be a fan of this idea julie, because using the “birth certificate” as the standard form is hetero, biofamily- normative, and part of the confusion about sex couples involves them having to adapt to a form that was never made with them in mind in the first place.

          • my idea actually makes me feel better about the whole same sex parents being listed on the certificate, because its less of a pretense.

        • Fantastic point

        • Question Tao, as an adoptee who has interacted with adoptees what is it about their birth certificate you feel is the most important thing they need access to that they currently don’t with an amended birth certificate?

          • Greg,
            First off, it’s being denied the right to the original document of your birth that every other citizen has the right to…to be seen as not worthy of the same everyone is entitled to is just wrong simply because we were not kept.

            To your question over an above the right to the document – this is generalizing: Was I named, if yes, what was my name. Is my birthdate my real birthdate, or was it changed, is my place of birth my real place of birth. Those two questions are valid questions because many state laws allowed it, other entities submitted what they wanted to the state, some ABC’s don’t even list the hospital, others list the city the AP’s lived in at the time (some of those laws are still on the books today). What is my mother’s name, do I have older siblings, was I a twin. Stuff you can take as fact on your BC and never doubt any of it.

            For me, I wanted to know if I was named, and if so, what my name was, what my mother’s first name was because I knew her surname. I didn’t worry about my birthdate, hospital, or place of birth, because I grew up knowing the doctor who delivered me, he was a visitor in our home frequently, not something common in adoption. My ABC did not list my weight, or length at birth, or how long the gestation period was, the doctor who delivered me was gone before I ever saw my ABC, because it wasn’t a document you needed back then for anything, I got my DL without it.

            From the perspective of adoptee’s whose adoption was finalized more than a year after birth, and the vital records filing date shows that. If they apply for a first time passport they are out of luck. It is not considered primary evidence of citizenship. Secondary evidence are things like an affidavit from the doctor or nurse that delivered you- good luck getting that – they have no record of Jane Smith being born to Sally and Harry Smith in their files (if the doctor is even still alive, or has the files from back then). Another secondary evidence is an affidavit from a blood relative (and yes, they note blood) so that’s gone too. So just go get your Original Birth Certificate and adoption files to prove – sorry, you can’t access that without a court order. Would that meet the criteria of Good Cause – I doubt it would in NY as they define Good Cause as medical need (reading it yesterday). You have to get your Senators, etc. involved. I know an AP who was a step-parent adoptee who couldn’t get hers without multiple hoops – but she had a blood relative she grew up with, so it worked out.

            • Thanks for the feedback.

              Am I assuming correctly that it’s a matter of having access to the information from the adoptee perspective and that unsealing the OBC in all states would give all adoptees what they need on that end?

              Sorry for all of the questions I just want to be sure I am not missing something else that adoptees are being denied from their perspective. I actually believe there is no reason in the year 2014 for any OBC to be sealed.

    • “The only problem as I see it is when they fail to provide these documents to the people involved. ”

      Agreed, I think a lot of the issues we see could easily be solved with unsealing all OBCs. I do think amending birth certificates when the legal parents change is necessary as long as you say there is the appropriate paper trail supporting it. In that scenario the child who one day will become an adult will have access to all of the documentation about their biological and biographical background.

      There is the school of thought that says an adoption decree would suffice. The problem with that is an adoption decree is not universally accepted when a parent wishes to enroll their child in school, sign them up for activities and apply for a passport (when they are younger than 18). In those situations it’s the child that suffers and is being treated differently because their parents are not recognized universally as being able to provide things for them that non adopted kids parents are.

      • Step-parent adoptions don’t always mean amended birth certificates so how do they manage without an ABC?

        • I don’t know. One isn’t obliged to get a birth certificate so perhaps some people do not feel the need and do without. I suppose the question is would you be entitled to one if you wanted it. I thought the answer was “yes” but I certainly could be wrong.

        • Because you at the very least have the other parent who has the child’s BC who can register a child for school, other activities and apply for a passport. An ABC is never necessary for proof of being legal parent with step parent adoption.

  2. My parent's donor is my father

    Have you read about this? Seems like an okay compromise….

    “(Reuters) – A bill aimed at protecting the parental and adoptive rights of same-sex couples in California passed a key legislative hurdle on Monday in an effort to close gaps in a state law that have led to at least one high-profile legal case.

    The measure by San Francisco Assemblyman Tom Ammiano, a Democrat, would require sperm donors, surrogate mothers and the people with whom they work to have a child to fill out a series of forms detailing the rights and responsibilities of each person.”

    Read full article here:
    “Sperm donor or parent? Check the box on California form”

    • I will need to read it before really responding, but my first thought: Problems often arise when people act in ways inconsistent with the checked boxes. Sometimes that is because they don’t read carefully, but more often I think it is because things evolve in ways that are unexpected. So you might check a box that says “donor” but then act as a parent. That’s a problem……

      But really, I need to read this and can’t do that right this minute. Thanks for posting it.

    • isnt this the same old parenthood by contract? i reject that as a basis for parenthood.

  3. regarding the same sex issue here- I think that as a society, we are in a transitional period in thinking about adoption and similar issues. In the past, the ideal was secrecy and pretense. The better the pretense was at being a genetically constructed family, the better. Laws went into effect to promote this. Like adoptive parents could even change the place of birth on the birth certificate, to better pretend that they had given birth to the kid.
    However nowadays our values have shifted and many of us believe in at least some level of openness and disclosure. The change is far from absolute though. And laws and documentation still reflects the old way.
    A same sex couple messes with all that, because they can’t pretend. And not everyone is cool with that.

    • One reason people offer for objecting to same-sex couples marrying/having children is that it decouples genetics and parenthood–and I think this is basically what you’re pointing out. If two women raise a child we know that one of them isn’t a genetic parent. A heterosexual couple can pass.

      This is really interesting. I think many of agree that secrecy is bad–and secrecy isn’t an option for the same-sex couple. But different-sex couples can, as it were, stay in the closet. It strikes me that it is not necessarily good to have that option. It must be tempting but I think it leaves families in a bad place with secrets embedded in the fabric of their bonds.

      I’m not sure why it is so threatening to some people to assert that genetic linkage isn’t the most important thing, but I think that it may be. Surely people raising genetically related children can see that their relationships, too, are so much more than just the genetics?

      Anyway, I think you are raising something really important here–perhaps from a different angle than what I’ve thought about.

      • well same sex couples aren’t free of the desire to pretend, it just looks ridiculous (to me, that is) when they do.
        i don’t apply that to birth certificates however, because birth certificates are a legally necessary document for them to have,
        and not a desire for the state to confirm that their pretense is real. (although that may be a motive for some, but thats not the primary reason for birth certificates)

  4. I find these cases amusing. The state knows that it must recognize same-sex adoptions in terms of respecting the legal rights of both parents. (We saw how Oklahoma was slapped down in 2006 when it tried to wiggle its way out of honoring same-sex adoptions, effectively stripping a child of a legal parent.) But denying same-sex adoptive parents the amended birth certificate simply creates a headache for the child and the parents and the state enjoys lauding that over a same-sex family’s head. It’s about pettiness and an example of how certain states are ok with punishing children for having same-sex parents.

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