N.Y. OBC Tour 2 *
[Veto Jacket 1935, Int. 2458]
Headers and footers have been omitted from the memorandum included herein.
Legislative Document (1936) No. 109
STATE OF NEW YORK
MESSAGE OF THE GOVERNOR
RECOMMENDING
Enactment of Legislation Which Will Remove the
Stigma of Illegitimacy from Unfortunate Children
Born Out of Wedlock; and Transmitting
Report of Commission Relative Thereto
ALBANY
J. B. LYON COMPANY, PRINTERS
1936
ALBANY, April 23, 1936 To the Legislature:
Last year I disapproved two bills relating to reports of births and certificates of births, Assembly Introductory 1774, Print 3048, and Assembly Introductory 2458, Print 3094.
In my memorandum I stated:
“I am in hearty sympathy with the principles and purposes of this legislation. I appreciate what the introducers and sponsors of it intend to accomplish and I am in accord with the policy which the bills seek to embody in our law. I believe that the unfortunate children born out of wedlock are entitled to the fullest measure of protection which the State can afford. The motive of removing the stigma of illegitimacy from such children is a most laudable one. I regret, however, that the method by which it is sought to be accomplished in this legislation is unfortunately so defective and would lead to such undesirable results, that I am compelled to disapprove the bills.”
The bills contained certain objectionable features. Moreover, their provisions did not jibe with other laws already on our statute books. Consequently, it was felt by many leading social welfare and child agencies throughout the State that the bills might do more harm than good.
In my memorandum I stated I would invite a number of persons to serve as an unofficial commission to prepare comprehensive legislation on this subject for presentation to the Legislature.
This Commission, of which Mr. Homer Folks is Chairman, has just submitted its report to me. In its report it states:
“The Unofficial Commission which you appointed last May, to prepare legislation for the consideration of the Legislature with regard to the removal of the stigma of illegitimacy from official records and certificates of birth, has been at work during the year and is now submitting a draft of a proposed bill.
“At its first meeting, the Commission agreed that a careful study of questions involved in the registration of births of children born out of wedlock was needed. Such a study has been made at the request of the Chairman under the direction
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of Edward Gluck, attorney, a member of the Commission, with the assistance of Alfred Giardino of the Department of Government of Brooklyn College, both of whom generously contributed their services. This study deals quite comprehensively with statutory requirements and administrative practices with respect to records of birth and certifications of birth in this and other States. Health department officials, social workers, and others familiar with the problem of illegitimacy were interviewed. The information and points of view secured and an analysis and interpretation of them are set forth in a report which the Commission hopes to print if funds can be secured.
“On the basis of the facts and considerations brought out in this study, the Commission was enabled to reach full agreement as to principles and procedures, and the bill as drawn seeks to make these effective in the various statutes concerned. The general purposes of the Commissions’s proposals are as follows:
“No direct question of illegitimacy shall be included in the form of record of birth, and there shall be nothing in the record to indicate either the legitimacy or illegitimacy of a child or the marital status of the mother.
“The official record of birth should be a statement in all respects correct in fact and in law.
“Such record should be preserved by the State, carefully guarded and not open for general inspection but available for legal purposes. Such a change seeks to protect children born out of wedlock by guarding their birth records more rigidly than at present.
“Certifications of birth, as distinguished from the original record of birth, should be used for all purposes for which a birth certificate is required, except when for legal reasons the original record of birth is necessary; and that such certifications of birth should be uniform for all persons and should give only the name and sex of the child, and the date and place of birth. This provision prevents the use of birth certificates which reveal illegitimacy in the case of children born out of wedlock.
“Provision is made for the substitution of a new record of birth in the event of the subsequent marriage of the parents of a child, or of paternity proceedings and adoptions, in which event the original record of birth is to be filed under seal and available only under court order.
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“Provision is made for the first time for filing an official record of birth in the case of foundlings and abandoned children whereby the place where the child was found shall be deemed the legal place of birth, and the approximate date of birth shall be deemed the legal date of birth.”
I am also submitting to your Honorable Bodies the study on the basis of which the Commission made its recommendations.
A proposed bill has also been drafted by the Commission and this will be introduced.
I recommend to your Honorable Bodies the adoption at this session of legislation which will remove the stigma of illegitimacy from unfortunate children born out of wedlock. HERBERT H. LEHMAN
REPORT
on
REGISTRATION OF BIRTH
OF CHILDREN BORN OUT OF WEDLOCK
Prepared For
Governor Herbert H. Lehman’s Commission
HOMER FOLKS, Chairman
by
ALFRED GIARDINO
Department of Government, Brooklyn College
Under direction of
EDWARD GLUCK
Member of Commission
Accepted by Commission—March 9, 1936
[7]
TABLE OF CONTENTS
Commission, Members of
Letter of Transmittal
Preface
[9]
MEMBERS OF GOVERNOR LEHMAN’S COMMISSION ON
REGISTRATION OF BIRTH FOR CHILDREN BORN
OUT OF WEDLOCK
HOMER FOLKS, Chairman
MRS. BENJAMIN L. BUTTENWEISER
MR. JOSEPH J. CANAVAN
MR. STANLEY P. DAVIES
MR. EDWARD GLUCK
JUDGE JOHN WARREN HILL, Domestic Relations Court, New York City MISS JANE HOEY
MONSIGNOR ROBERT F. KEEGAN
MR. ROBERT P. LANE
DR. SOLOMON LOWENSTEIN
MR. WILLIAM H. MATTHEWS
JUDGE GEORGE W. SMYTH, Children’s Court, Westchester County
MR. FRANK STONE
MISS FRANCES TAUSSIG
MR. CHARLES J. TOBIN
JUDGE CECIL B. WIENER, Children’s Court, Buffalo
[11] March 2nd, 1936 Homer Folks, Chairman,
Governor Herbert H. Lehman’s Commission
on Registration of Birth for Children Born out of Wedlock,
105 East 22nd Street,
New York City.
Dear Mr. Folks:
I have the honor to transmit herewith the report on the subject of registration of birth for children born out of wedlock, which has been prepared for the Commission by Mr. Alfred Giardino under my direction. If it is desirable, we shall be glad to draw the necessary statutes embodying the recommendations made in the report, and assume it is not necessary for the Commission to draw any of the administrative regulations.
Respectfully yours, EG:F EDWARD GLUCK
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PREFACE
In 1934 the sentiment which had been developing for some time in favor of removing from children born out of wedlock the stigma of illegitimacy caused by their birth records, crystallized in the desire of a group of interested citizens organized by Dr. Mary Halton to have something definite done about it by the State of New York. As a result, bills, commonly known as the Holley Bills, were prepared and caused to be introduced in the legislature in 1935. It was the intention of the Holley Bills to permit the name of the father in the birth reports of children born out of wedlock to be a fictitious one. The bills were enacted by both houses of the legislature, but were vetoed by Governor Lehman. In his veto message the Governor in effect stated that there was general agreement with the purpose of the bills, but that the method invoked was not deemed a satisfactory one for accomplishing such a purpose. Accordingly, he appointed a Commission to make a study of the subject and to make recommendations for consideration by the next legislature.
The Commission held a meeting on the call of its Chairman on June 17th, 1935, in order to organize. It was recommended by the undersigned that a study should be made of the statutes and the administrative practices in the other states. With the approval of the Commission and the sanction of its Chairman, such a study was undertaken under the direction of the undersigned. All the detailed research was done by Alfred Giardino, member of the Department of Government of Brooklyn College and a student at Columbia Law School, whose services were secured through the interest and assistance of Professor Walter Gellhorn, of Columbia Law School. In the course of his study, Mr. Giardino consulted a number of the members of the Commission. A questionnaire was prepared and sent to the states and answers were received from all. The study has been made over a period of nine months involving considerable research and consultation with a number of people. In the absence of any appropriation to the commission the expenses of the project were defrayed by the undersigned.
Appreciation is expressed on the behalf of Mr. Giardino and the undersigned to a large group of people who have given so liberally of their time and efforts in helping to produce this report, including Professor Walter Gellhorn, Chairman Homer Folks, Sophie Van S. Theis, Assistant Secretary of the State Charities Aid Association, Dr. Thomas Parran, Jr., former Health Commissioner of New York State and present Surgeon General of the United States, Dr. John L. Rice, Health Commissioner of New York City, Dr. Joseph V. DePorte, Director of Vital Statistics of the State Department of Health, Thomas J. Duffield, Registrar of Records of
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New York City Department of Health, Stanley P. Davies, Acting Chairman in the temporary absence of MR. Folks, and Miss Elsie M. Bond, Executive Secretary of the Welfare Legislation Bureau of the State Charities Aid Association.
It did not prove possible, because of the limitation of resources, to make a comprehensive study of the general question of illegitimacy. The need for such a study with an adequate appropriation, and the problems that might be examined in connection therewith, are discussed in Appendix H.
It is interesting to note in conclusion that the work done has already been productive of results, in that the State Commissioner of Health has recently directed that there be excluded from the State form of birth report the direct question as to illegitimacy, and the American Public Health Association has adopted a resolution favoring the elimination of the question as to illegitimacy on birth reports. In connection with the latter, Mr. Giardino was glad to make available to the Committee on Registration of Births out of wedlock for the Association the material which had been collected on the subject of its study. EDWARD GLUCK March 2nd, 1936.
Memorandum of the Recommendations of the Study on
Illegitimacy Made at the Request of the Governor’s
Informal Commission on Illegitimacy
(The report and the recommendations based on it, were presented to the Acting Chairman of the Commission and approved by him prior to the meeting of the entire Commission. This memorandum was then sent to the members of the Commission prior to the meeting on March 11th, 1936. All the recommendations were made concerning the clauses to be used in the proposed bill, namely: (1) the inclusion of the notation “by adoption” on the face of the new birth record when a new birth record is issued in adoption cases, which was deemed desirable until a study of the inheritance law could be done; and (2) that the birth notification should be sent to an address designated by the mother, the proposal being deemed desirable for practical reasons.)
This study on illegitimacy was limited to a consideration of the registration of birth for children born out of wedlock. It is not intended to be a comprehensive study of the general subject of illegitimacy.
Information concerning statutory requirements and administrative practices with respect to records of birth and certifications of birth in this and other states was collected. People familiar with 17
the problem of illegitimacy were interviewed. The information gathered together has been analyzed and interpreted in a report which the Commission hopes to print.
Definite recommendations emerged out of the study. These are based on the general idea that, the original record of birth or birth certificate is to be a statement which should be in all respects correct in fact and in law; that such record is to be preserved by the State, carefully guarded and not opened for general inspection, but shall be available for legal purposes; that certifications of birth giving evidence as to time and place of birth shall be used generally for all purposes for all children except when for legal reasons the original record of birth is necessary.
The recommendations more specifically are as follows:
Form of Record of Births
1. Exclude from the form of record of birth any direct question as to illegitimacy.
2. Include on the record of birth, in so far as the name of the mother is concerned, only the question of “Full maiden name.”Certification of birth
1. Provide for a single type of notification of filing of the record of birth, with notations as to parents’ names eliminated, for all children, whether born in wedlock or out of wedlock.
2. Provide for a single type of certification of birth, giving date and place of birth, with notations as to parents’ names eliminated, for all children whether born in wedlock or out of wedlock, and provide that these certifications be used with the same effect as the complete record of birth.Manner of filling out records of birth
1. Prohibit the making of any statement as to illegitimacy such as “illegitimate,” “born out of wedlock,” on records of birth, certifications, etc.
2. Prohibit the acceptance by an official of any such document containing any such statement.Subsequent marriage legitimation
1. Provide a form of application for the correction of records of birth for New York City.
2. Provide for a new record of birth for children born out of wedlock who have been legitimated by the subsequent marriage of their parents.
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Paternity proceedings
1. Provide that the court clerk shall report every decree of adjudication of paternity on a prescribed form to the registrar, who shall make the appropriate changes.
2. Provide for a new record of birth for children born out of wedlock whose paternity has been subsequently established.Adoptions
1. Provide that the court clerk, unless the foster parents formally request otherwise, shall report every decree of adoption of a child on a prescribed form to the registrar, who shall make the appropriate changes.
2. Provide for a new record of births for a child who is adopted.Foundlings and abandoned children
1. Require the finder of any child of unknown parentage, or an appropriate governmental welfare agency, to report such fact of finding to the registrar within a stipulated time.
2. Provide that the place where found shall be deemed the legal place of birth and that the approximate date of birth shall be deemed the legal date of birth.Sealing replaced records of births
1. Require that where there is a new record of birth, the old certificate and all pertinent documentary evidence should be filed under seal.
2. Allow such sealed records to be available for inspection only upon the request of the individual, if of age, or his parents, his representative, or upon court order, and only upon court order in the event of adoptions.Correction of existing records
1. Provide for a new record of births in the cases of those who have been legitimated or adopted in the past and in cases of past establishment of paternity for children born out of wedlock.
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Report on Registration of Birth for Children Born Out
of Wedlock
The Following recommendations are made:
I. FORM OF BIRTH REPORT
1. Exclude from the form of birth report any direct question as to illegitimacy.
There is in the present State form a question that asks if the child is “legitimate?” Public Health Law, section 382, provides that the birth of each child born in this State shall be registered and there shall be filed with the Registrar of the district a certificate “upon the form prescribed therefor by the State Commissioner of Health.” Section 383 provides that “the certificate of birth shall contain such information and be in such form as the State Commissioner of Health may prescribe.” The change recommended can be accomplished for the State by an administrative ruling, since there seems to be no statutory requirement. The administrative change could be accomplished on the initiative of the State Commissioner of Health, and could be embodied in an appropriate departmental regulation by him.
It is recommended that there should also be a prohibition in the statute against any future requirement of such a question, in order to prevent the restoration of the present practice by any future administration.
There is no direct question as to the legitimacy of the child in the birth report used by New York City. The Greater New York Charter, section 1237, enumerates the facts which must be contained in a report of the birth to the Department of Health, but neither of these sections includes any reference as to illegitimacy. However, in order to prevent the inclusion of any such question in the future there should be a prohibition in the charter similar to the statutory change recommended for the State.
The comparative survey of the practices and effects in the United States of the requirements of such information on the birth report, revealed no justifiable reason for retaining the question “Legitimate?” on birth report forms. The nature of the information desired has resulted in inaccurate and incomplete statistics on the question, thereby destroying their utility for statistical purposes. Moreover, the vast majority of the jurisdiction have continued to include the question on the form of their birth reports from habit, and without questioning the need or social consequences thereof. Many jurisdictions retain the question because of the erroneous belief that it is required by the Model Law for the Registration of Births and Deaths formulated by the Bureau of the Census about thirty years ago. In order for a state to be included in the registration area it must place the items of the Model Law in its state 20
forms. But is [sic] should be pointed out that in discussing the item “(6) Whether legitimate or illegitimate*”, the Model Law states in its footnote that, “*This question may be omitted if desired, or provision may be made so that the identity of parents will not be disclosed.” This was the only question which the Model Law considered as optional. However, there are three states, California, Massachusetts, and New Hampshire, which do not have any question as to illegitimacy in their birth reports and no harmful results have arisen from that fact. The inclusion of such a question needlessly gives official support to the stigmatization of the child born out of wedlock.
2. Exclude from the birth report any question as to the marriage name of the mother, and any reference to marriage.
The birth report form for the State does not contain any reference to the marriage of the parents, but merely asks for the mother’s maiden name and is therefore satisfactory in this regard. The city birth report however, asks a question as to the mother’s name before marriage. The first question should be eliminated, and the second possibly could be revised to read “mother’s maiden name.” The report does not now contain any question as to whether the parents were married. The change recommended as to the city form could be accomplished by an administrative ruling of the Department of Health since sections 1237 and 1240 of the Charter merely call for a record of the “maiden name of the mother .” However, in order to prevent any present or future requirement of such information on the birth report, it is recommended that there should be a prohibition both in the State and city laws against any such questions.
The questions as to marriage reveal indirectly whether or not the child is legitimate. The stigma of illegitimacy appears when no marriage name is given in answer to the question. Therefore the social considerations that demand the elimination of the question “Legitimate?” likewise demand the elimination of reference to marriage.
II. CERTIFICATIONS OF BIRTH
There are two types of certifications in use today. The first type is really a notification of the filing of the birth report issued shortly after the birth of the child was recorded. The second type is a certification of birth or birth certificate issued at any time later. It should be noted that certifications and certified copies of birth records are not one and the same. In the case of a certified copy the person authorized to certify must attest to the fact that he compared the copy with the original and that it is a correct transcript of the whole original (Civil Practice Act, sections 329 and 330). Certified copies may be secured by means of such a transcript duly sworn by the officer or by a photostatic copy of 21
the original, and are provided for in section 388 of the Public Health Law. The certification of birth or birth certificate, on the other hand, is a certificate of only certain facts contained in the birth records, such as a name, date and place of birth and the names of the parents of the child.
1. Provide for a single type of notification of the filing of the birth record, with notations as to parents’ names eliminated, for all children, whether born in wedlock or out of wedlock.
In New York State the notification of filing the birth report or certificate of registration is on a printed form signed by the Local Registrar. He fills this out from the original birth report filed in his office, prior to the time that he forwards it to the central office in Albany, which he does for the fifth day of every month. The present form of this notification calls for the names of the parents. In practice such notifications are not issued in the case of illegitimate children, except upon request and if they are issued, they do not show either parent’s name filled out. The Public Health Law, section 389 provides that “within ten days after receiving the certificate of any legitimate child, he (the District Registrar) shall furnish to the parents or guardian of the child a certificate of registration to be made out on a form which shall be furnished by the State Commissioner of Health.” The change in the form of such certification or notification to include only the name, sex, date and place of birth of the child could be accomplished by an administrative order of the State Commissioner of Health, but the provision for sending out such a notification to the mother of each child would have to be accomplished by an amendment to section 389, Public Health Law. The change could be effected by the elimination of the word “legitimate” from the statute.
In New York city it is also the practice to issue a notification of birth in the case of children born in wedlock, but not in the case of children born out of wedlock, except if requested by the mother. The notification also has provision for the names of both parents. The change recommended in the form of such notification to include only the name, sex, date and place of birth of the child could be accomplished by an administrative order of the Department of Health, or by inserting a provision in the law providing for such a notification.
The names of the parents are not necessary on the notifications, since their basic purpose is to supply a certification of the date and place of birth of a particular individual, and such purpose is satisfied without furnishing the names of the parents. If the names of the parents are eliminated, the notification to mothers of children born out of wedlock could be issued in the same manner as to mothers of legitimate children. Thus the need for the different practices now prevalent for these two classes of children will be obviated, and the two groups will e placed on an equal plane in this matter. 22
A number of states, such as Illinois, Maryland, Rhode Island, Utah, Virginia and Wisconsin, follow the practice here recommended, and use a form of notification supplying simply the name of the child and the date and place of birth, without reference to the names of the parents. Under the present practice in New York, an inference of illegitimacy might be made from the omission of the names of the parents on a notification, or the failure to receive a notification. The possibility of such an inference would be removed if the recommended change were made.
2. Provide for a single type of certification of birth or birth certificate, with notations as to parents’ names eliminated, for all children whether born in wedlock or out of wedlock. Provide that such certification or birth certificate may be used with the same effect as certified copies of birth records.
For the State the certification of birth or birth certificate is made on a form containing the letterhead of the Department of Health. This form is in itself satisfactory. In practice, however, it is customary for it to be filled out by including names of the parents after the name of the child in the case of children born out of wedlock, and making no reference to the parents in the case of children born out of wedlock. The recommended change in the practice of the department could be accomplished by an administrative ruling. Preferably, however, it could be effected by inserting a provision in the law that a certificate shall be accepted with the same effect as certified copies of birth records.
The practice in New York City in certifications of birth is to issue a certification based on the birth record in the case of children born out of wedlock, although sometimes, but rarely, a similar card is given in the case of children born in wedlock for school or work purposes. In substance there are two different practices for the two different groups of children. A single form of certification is recommended similar to the type in practice for the State. the recommended change could be accomplished by administrative ruling of the Department of Health.
The reasoning mentioned for suggesting a single type of notification of filing of birth certificate for all children with notations as to parents’ names eliminated is applicable to the change recommended here for the certification of birth.
III. MANNER OF FILLING OUT BIRTH REPORTS
1. Prohibit the making of any statement as to illegitimacy, such as “illegitimate”, “born out of wedlock”, on birth reports, certifications, etc.
2. Prohibit the acceptance by an official of any such document containing any such statement.
At present in New York State, birth reports for children born out of wedlock are filled in and are accepted with notations such 23
as “illegitimate”, or “born out of wedlock” clearly marked on them. Notations of such type are generally included on such birth reports to explain why certain questions relating to the father are unanswered. Section 387 of the Vital Statistics Law provides that the Health Commissioner shall prepare and issue such instructions as are required to procure the uniform observance of the provisions of the law and the law and the maintenance of a perfect system of registrations. The change recommended could therefore be effected by an administrative ruling of the Commissioner of Health, or by inserting a provision in the law forbidding any such notation on birth reports, birth certificates, etc.
In New York City, birth reports are also filled in and accepted with such notations. The abbreviation “O.W.” (Out of Wedlock) is also in common use in the city. It is the usual notation for answering such questions as “Mother’s marriage name?” or “Father’s name?”. There are cases where even certifications are inadvertently issued with an identifying “O.W.” The recommendations made of prohibiting such notations could be effected by an administrative ruling of the Department of Health, or by a statutory provision similar to the one recommended for the State.
The faithful observance of such regulation would eliminate the needless and discriminatory notations now found on many birth reports and sometimes included on certifications. To accept birth reports with such notations would destroy any accomplishment that would result from the elimination of the questions as to legitimacy or marital status.
IV SUPPLEMENTAL CERTIFICATES
There will not be discussed here the general question of correction of birth records. Such question concerns birth records of children born in wedlock as well as those born out of wedlock. However, there are several types of situation concerning children born out of wedlock that do need consideration.
A. SUBSEQUENT MARRIAGE LEGITIMATION
1. Provide a form of application for the correction of birth certificates for New York City.
The special form now being used in New York State as an application for correction of the certificate and records of birth is a satisfactory one. It contains an amendatory statement to be filled out and witnessed by the applicant, and also a copy of the birth report form to be filled out by such applicant so as to show the correction.
However, in New York City there is no prescribed form for the correction of birth records such as exists in the rest of the State, although a Sheet of Instructions for correction f birth records is issued on request. According to the instructions, an application 24
must be made by both parents or legal guardian, except that where it is made by one parent the reason therefor should be stated; a new corrected report must be obtained from the medical attendant. The burden of proving that an error has occurred in the original record is upon the applicant for correction. The substance of the affidavit is a statement of the true facts desired to be substituted, with documentary proof in support thereof. However, there is sometimes issued on request, a typewritten form of affidavit as an application for correction in the case of the subsequent marriage of the parents. The substance of the affidavit is a statement that the parents are the parents of the child, that they were not married when the child was born, but have married since.
A special form of application for correcting birth records, instead of instructions as to how affidavits should be made, would simplify and facilitate the making of corrections not only in the case of legitimation of children, but in other corrections as well. Moreover, every State in the country provides a special form for the correction of birth records. It is therefore recommended that the practice now in effect in the State be adopted for the city. The recommended change could be made by an administrative order of the Department of Health.
2. Provide for a new birth record for all children born out of wedlock who have been legitimated by the subsequent marriage of their parents.
Under the present law, subsequent marriage of parents legitimizes any illegitimate child born of parents prior to their marriage (Domestic Relations Law, Section 24) . Under the present practice in New York State, the change in the birth record to show legitimacy is now handled as an ordinary application for correction of the record of birth. The correction is made in red ink on the original birth record. On the form used, there is provision for a statement by the Registrar that the corrections have been entered in red ink on the local record, and there is also provision for a notation that an entry has been made as a correction of the State record. The law covering corrections for New York State is found in section 387 of the Public Health Law, which provides that “no certificate of birth or death, after its acceptance for registration by the registrar, and no other record made in pursuance of this article (dealing with Vital Statistics) shall be altered or changed in any respect otherwise than by amendments properly dated, signed and witnessed.” The change herein recommended could be accomplished by a statute providing that upon acceptance of an application for correction because of subsequent marriage of parents, a new certificate of birth or birth report would be prepared and filed in place of the original birth record.
In New York City, a new birth report is usually prepared upon the receipt and approval of an application for correction of a birth record because of the legitimation of a child by the subsequent 25
marriage of the parents. However, in some cases, where only very minor corrections must be made, the correction have been made in red ink on the original record instead of substituting a new birth record. Where a new certificate is to be filed, it is prepared either by one of the parents (a practice authorized generally where there has been no attending physician or midwife), or by a clerk in the registrar’s office and in both cases the signature of the parent is required. Occasionally the new record is pasted over the old one in the four corners, thereby preventing any facts on the original record from being given, but this is not a practice prevalent throughout the city. The practice as to corrections of birth records in New York city is governed by section 1241 of the Greater New York Charter, which provides that no change or corrections shall be made without proof satisfactory to and upon the approval of the commissioner of health. Although the recommendation could be effected by an administrative order of the Commissioner of Health, or by inserting a statutory provision that would provide the substitution of a new birth record in such cases.
Under the present practice, photostatic copies of birth records corrected with red ink show the previous illegitimate status and the subsequent legitimation of the child. This disclosure of the facts of prior illegitimacy is a needless one, and may be prevented by the substitution of a new birth record for the old one in such cases. Illinois, in 1933, passed a law which authorized such a substitution. The statute provided that when the parents of an illegitimate child intermarry, “a new certificate of birth shall issue upon request in the same form as certificate of birth for a legitimate child.”
B. PATERNITY PROCEEDINGS
Under the present law in New York State, if a child is illegitimate, the name of the putative father shall not be entered upon the birth report without his consent, but the other particulars relating to the putative father may be entered if known, otherwise as “unknown” (Public Health Law, Section 383). Two situations therefore result. One, where the putative father consents to the entry of his name on the birth report, and another where he does not consent, but is declared to be the father of the child in an appropriate court proceeding.
1. Provide that the court clerk shall report every decree of adjudication of paternity on a prescribed form to the registrar, who shall make the appropriate changes.
At present the court clerks are not required to report the name of one who is judicially determined to be the father of a child born out of wedlock. The present practice leaves it to an interested 26
party such as the mother, to report the adjudication of paternity to the registrar by means of the ordinary application for correction. However, there is a serious doubt, both in the state and city, as to the legal right of the respective Health Commissioners to authorize a correction of the birth record in regard to the paternity of the child on the basis of a court decree alone. In New York City applications for such corrections are not honored if they are made by the mother without the consent of the father. The recommended change could be effectuated by means of a statute making it the duty of the court clerks to report every decree of adjudication of paternity on a prescribed form to the registrar.
Under the present practice, the names of those who are adjudged fathers are, in many cases, not inserted on the birth records because the mothers often forget to apply for such correction or do not think it important enough, or evidence defoliate in securing the consent of the father of the child. Some states, such as Iowa, Minnesota, Rhode Island, and Wisconsin, have provided by statute for the reporting of such adjudication to the proper authorities. Under such a statute the number of cases where birth certificates show illegitimacy, either directly, or indirectly by the inference drawn from the absence of data as to the father, would be decreased.
2. Provide for a new birth record for children born out of wedlock whose paternity has been subsequently established.
The addition of the father’s name to birth records of children born out of wedlock is made in red ink upon the birth records, under the present practice of New York State. This is so when the putative father subsequently consents to having his name entered on the record. The change recommended could be made in the state by a statute providing that in such cases a new birth report should be prepared and filed in lieu of the old record.
In New York City the present practice as to the addition of the name of the father varies. It is usually made by correcting the birth record with red ink, although in some instances new birth records are substituted. Under the law applicable to New York City, the recommended change could be made by an administrative order of the Department of Health. Preferably, however, it could be effected by a statutory provision that would require the substitution of a new birth record in such cases.
The addition of fathers’ names in red ink or in a different handwriting from that of the contents of the original record may cause an inference of illegitimacy. Substitution of new birth record in such cases would eliminate any such inference. 27
C. ADOPTIONS
1. Provide that court clerk, unless the foster parents formally request otherwise, shall report every decree of adoption of a child on a prescribed form to the registrar, who shall make the appropriate changes.
At present the court clerks are not required to report the adoption of a child. The present practice leaves it to one of the interested parties, such as the foster parents or the natural mother, to report the adoption and to go through the correction procedure in order to have the names of the foster parents included on the birth record. The same situation exists in New York City, for one of the interested parties must likewise go through the procedure for correcting birth records. Within the past few years some states such as Alabama, Arkansas, California, Delaware, Georgia, Maine, North Carolina and Texas, have by statute provided for the reporting of all decrees of adoption in the state to the registrar of vital statistics. The recommended change could be effectuated by means of a statute making it one of the duties of the clerks of such courts to report such facts.
2. Provide for a new birth record for a child who is adopted.
In adoption cases the names of the foster parents are placed on the original record, since under the present setup in New York State, there is no authorization or provision for substituting a new birth record for the original one of a child who is adopted. Photostatic copies would therefore reveal the fact of adoption and all the other facts present on the original birth record of the child. There is no provision in the Public Health Law allowing a new birth record for adopted children, and the State Department of Health, since it lacks the power, has been unable to make any substitution. The same situation is true concerning the birth records of adopted children in New York City. The change that is recommended could be accomplished by a statute providing for the substitution of a new birth record by the State Commissioner of Health in the cases of adopted children. Although in New York City the change could probably be effected by an administrative order, a statute similar to the one recommended for the State would be preferable.
According to social workers, quite a number of the children adopted are apt to be either children born out of wedlock, or foundlings, in which case it cannot be ascertained whether the children have been born in or out of wedlock. As a result photostatic copies of such birth certificates would reveal the former illegitimate status, or allow a presumption of illegitimacy in these cases. The recommended change would materially decrease such presumptions, for a new birth record based on the new name and status of child, would substituted for the original birth record. A few states such as Alabama, Illinois, Texas and Wisconsin have, by law, provided for new birth records in cases of adoptions. 28
D. FOUNDLINGS
1. Require the appropriate governmental welfare agency or other official having responsibility for the child to report the finding of any child of unknown parentage to the registrar, within a stipulated time.
2. Provide that the place where found shall be deemed the legal place of birth and that the approximate date of birth shall be deemed the legal date of birth.
At the present time there is no provision in the Public Health Law dealing with registration of birth of a foundling. The usual practice is for the institution at which the foundling is committed to file a birth report with the name given the child by the Department of Public Welfare, and with a notation as to the approximate date of birth of the child. Often no birth report whatsoever is made out for the child.
In the case of foundlings it ordinarily cannot be ascertained whether the child was born in wedlock or out of wedlock. In many cases it might be inferred that the child was born out of wedlock. Some states, such as Illinois and California have specifically dealt with the problem by statute. In Illinois the finder of the child is required to file a report within five days to the local registrar on an approved form. The place of finding is deemed the place of birth. The name of the caretaker of the child is inserted in the birth report and the person or institution with whom the child is placed is required to report the name given to the child within ten days after the child is received. This name is endorsed by the registrar upon the birth report with the date, and thereupon the report constitutes the birth record of the child. If the child is later identified and a record of birth found or obtained, the foundling report is canceled with the citation to the filed birth record. A similar practice is recommended for New York, and in the event that the child is later identified, a true birth report in the general form should be authorized to be filed if it has not already been done, and upon the filing of such report or the location of the birth record if already filed, the foundling record should be canceled. Such a change, which could be accomplished by means of a statute, would give the child a legal date and a legal place of birth and would allow the issuance of certifications based on the birth record.
E. SEALING REPLACED BIRTH RECORDS
1. Require that where there is a new birth record, the old record and all pertinent documentary evidence should be filed under seal.
2. Allow such sealed records to be available for inspection only upon court order.
As mentioned above, no new birth reports are accepted by New York State and there is no present authorization for the filing under 29
seal of any vital statistics records of the State. In New York City, as mentioned above, new birth records are substituted for the original records in certain cases. Such new records are sometimes pasted above the original records to conceal them. However, there is no statutory provision or administrative practice providing for the sealing of the original birth record in these cases.
The law concerning the publication of records in New York State (Section 391 of the Public Health Law) provides that the State Commissioner of Health “shall, upon request, supply to any applicant a certified copy of the record of any birth or death registered under the provisions of this act, unless he is satisfied that the same does not appear to be necessary or required for judicial or other proper purpose.” It has been the practice of the Commissioner to be very strict in the interpretation of this provision, especially in the records of children born out of wedlock. The law for New York City as to the publication of reports of the Health Department is found in Section 1175 of the Greater New York Charter which provides that the Board of Health ma establish reasonable regulations as to the publicity of any of the papers, or records of the department. It has been the practice of the Board of Health to allow the publication of birth records, especially in the records of children born out of wedlock, only after it has been shown that they will be used for a proper purpose.
The change herein recommended would affect the cases of legitimation by subsequent marriage, paternity subsequently established, and adoptions, and could be accomplished by means of a statute that would provide that in such cases, the original birth record or copies of them might be secured only on court order. The practice of limiting inspection of records of children born out of wedlock is in force in the states of Kansas, Massachusetts, Minnesota, New Jersey, Texas, West Virginia and Wisconsin. Such a procedure exists for adopted children in California and in Connecticut. In Virginia, discretion is vested in the state registrar to decline to issue certified copies of birth records in the case of children born out of wedlock, except on court order.
One state, Illinois, has provided for the sealing of the old birth record in the cases of children legitimated by the future marriage of their parents and in the case of adoptions. Pertinent documentary evidence, such as the certificate of marriage filed, etc. is included in the sealed package, and such sealed package may not be opened, except upon order of a court of record. Alabama and Texas provide for a similar procedure in the cases of children who are adopted.
Many of the precious recommendations made in this report would not be capable of producing their best effects if the original birth certificates revealing illegitimacy were indiscriminately available. The proposed recommendations would preserve the records and make them available, but would prevent outsiders as well as curious clerks from securing the data on the original certificate, except if they could secure a court order. 30
F. CORRECTION OF EXISTING RECORDS
1. Provide for a new birth record in the cases of those who have been legitimated or adopted in the past and in cases of past establishment of paternity for children born out of wedlock.
The recommendation for the future, made above, should be made available to those who have gone unprotected in the past. Therefore, provision for a new birth record in the case of those who have been legitimated by subsequent marriage of the parents or when paternity has been subsequently established, or who have been adopted, should be made by appropriate statute; the change to be accomplished upon application and payment of a reasonable fee to be set by the Health Commissioner. 31
APPENDIX A
DEFINITION OF TERMS
There is in the present law of New York State and of many other states, a good deal of confusion in respect to the terminology used for the records and certifications received and issued by the Department of Health. For the purpose of clarifying the terms used in this report; of correcting any popular misconceptions in the usage of these terms; and of serving as a possible basis for a clarification and simplification of the terms now employed in our statute books, the following may be noted.
The different types of documents ordinarily involved are the following:
1. BIRTH REPORT
The “birth report” is the document sent to the local registration office and contains the information obtained by the attending physician, etc., about the birth. It has sometimes been called the “birth certificate” or “certificate of birth.”
2. BIRTH RECORD
The “birth record” is the document kept in the central office. It is a public record which sometime comes into existence when the birth report is accepted by the authorities and is therefore in substance a birth report after it has been accepted and filed. It has often been confused with the term “birth certificate.”
3. COPY OF THE BIRTH RECORD
The term “copy of the birth record” is the copy of the birth report made by the local registrars in specially bound books provided for that purpose, before the birth report is sent to the central office in Albany. It is often confused with the terms “birth record” or “birth certificate.”
4. BIRTH NOTIFICATION
The “birth notification” is the document sent from the registration office to the parents immediately after the birth report is accepted. It should contain exactly the same information as that in the birth certificate, namely the four items of name, sex, date and place of birth of the person to whom it relates. It should be identical in form with the birth certificate, except possible there may be a physical difference so as to make the birth notification suitable for framing, etc. It is sometimes called the “certificate of registration,” “mother’s certificate,” or “birth certificate.” 32
5. BIRTH CERTIFICATE
The “birth certificate” is the document furnished either by the registration office or the central office ordinarily available for use in connection with proof of age. It should contain only the four items of name, age, date and place of birth of the person to whom it relates. It should have the same legal effect as the facts therein contained as a certified copy of the birth record. The “birth certificate” is sometimes referred to as the “certification of birth” or “birth card.”
6. CERTIFIED COPY OF BIRTH RECORD
The “certified copy of birth record” is the document furnished by the registration office or the central office, being either a complete transcript or a photostatic copy of the birth record. It is the usual type of certified copy of a public document available for legal purposes, and contains a complete transcript of the original record. The use of the certified copies should be restricted to where the are necessary for legal purposes for a use which cannot be fulfilled by a birth certificate. 33
APPENDIX B
The “Holley Bills” as enacted by the 1935 New York State Legislature are given below.
STATE OF NEW YORK
Nos. 3037, 3094 Int.2458 IN ASSEMBLY April 3, 1935 Introduced by Mr. HOLLEY—(by unanimous consent)—read once and referred to the Committee on Public Health—amended on special order of second and third reading, ordered reprinted as amended retaining its place on the calendar.
AN ACT
TO AMEND THE PUBLIC HEALTH LAW, IN RELATION
TO CERTIFICATES OF BIRTH
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section three hundred and eighty-three of chapter forty-nine of the laws of nineteen hundred nine, entitled “An act in relation to the public health, constituting chapter forty-five of the consolidated laws,” as added by chapter five hundred and sixty-nine of the laws of nineteen hundred thirty, is hereby amended to read as follows:
� 383. Certificate of birth. The certificate of birth shall contain such information and be in such form as the state commissioner of health may prescribe.
The personal particulars called for shall be [authenticated by the signature of the informant who may be any] obtained from competent person acquainted with the facts. If the child dies without a given name, enter in the space provided for the name the word “Died unnamed.” If the living child has not yet been named at the date of filing certificate of birth, the space for the given name of the child is to be left blank, to be filled out subsequently by a supplemental report, as hereinafter provided.
[If the child is illegitimate, the name of the putative father shall not be entered without his consent but the other particulars relating to the putative father may be entered if known, otherwise as “unknown.”]
In the event of a child born out of wedlock, the name of the putative father shall not be entered without his consent, and in the event of non-consent it shall be the duty of the mother and physician or midwife, with the consent of the mother, to supply on the birth certificate at least two given names for the child, one of which shall serve as a surname for the child, except that the34
name of any known living male is forbidden. The mother of the child may also use the last given name as her name. The child’s last name may also be used to fill in any other date required by the birth certificate.
The certificate shall be signed by the attending physician or midwife, with date of signature and address; if there was no physician or midwife in attendance, then by the father or mother of the child, householder, owner of the premises, manager or superintendent of public or private institution where the birth occurred, or other competent person whose duty it shall be to notify the local registrar of such birth.
The registrar shall enter the exact date of filing of the certificate in his office attested by his official signature and registered number of birth.
� 2. This act shall take effect immediately.
EXPLANATION—Matter in italics is new; matter in brackets [ ] is old law to be omitted. 35
STATE OF NEW YORK
3rd Rdg. 1096 Nos. 1962, 2295, 3048 Int. 1774
IN ASSEMBLY February 27, 1935 Introduced by Mr. HOLLEY—(by request)—read once and referred to the Committee on General Laws—committee discharged, bill amended, ordered reprinted as amended and recommended to said committee—amended on third reading ordered reprinted as amended, retaining its place on the order of third reading and re-engrossed.
AN ACT
TO AMEND THE GREATER NEW YORK CHARTER, IN
RELATION TO BIRTH REPORTS
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. It shall be the duty of the parents of any child born in said city [and if there be no parent alive that has filed such report, then the next of kin of such child born], and of every person present at such birth, within ten days after such birth, to file a report with the department of health, in writing, stating, so far as known, the date, borough and street number of said birth, and the sex and color of such child born, and the names, residence, birthplace and age of the parents, the occupation of the father and the maiden name of the mother. It shall also be the duty of physicians and professional midwives to keep a registry of the several births in which they have assisted professionally, which shall contain, as near as the same can be ascertained, the time of such birth, name, sex, and color of the child, the names, residence, birthplace and age of the parents, occupation of the father and maiden name of the mother, and file a report of the same within ten days with the said department of health. In the event of a child born out of wedlock, the name of the putative father shall not be entered without his consent and in the event of non-consent it shall be the duty of the mother and physician or midwife with the consent of the other to supply on the birth certificate at least two given names for the child, one of which shall serve as surname for the child, except that the name of any known living male as the father is forbidden. The mother of the child may also use the last given name as her name. The child’s last given name may also be used to fill in any other data required by the birth certificate.
� 2. This act shall take effect immediately.
EXPLANATION—Matter in italics is new; matter in brackets [ ] is old law to be omitted. 36
APPENDIX C
The text of Governor Herbert H. Lehman’s Veto Memorandum for the “Holley Bills” is as follows:
STATE OF NEW YORK
EXECUTIVE CHAMBER—ALBANY May 11, 1935 Memorandum filed with the following bills:
Assembly Bill, Introductory Number 1774, Printed Number 3048, entitled:
“AN ACT to amend the Greater New York charter, in relation to birth reports.”
Assembly Bill, Introductory Number 2458, Printed Number 3094, entitled:
“AN ACT to amend the public health law, in relation to certificates of birth.”
Not approved
I am in hearty sympathy with the principles and purposes of this legislation. I appreciate what the introducers and sponsors of it intend to accomplish and I am in accord with the policy which the bills seek to embody in our law. I believe that the unfortunate children born out of wedlock are entitled to the fullest measure of protection which the State can afford. The motive of removing the stigma of illegitimacy from such children is a most laudable one. I regret, however, that the method by which it is sought to be accomplished in this legislation is unfortunately so defective and would lead to such undesirable results, that I am compelled to disapprove the bills.
The bills permit an unmarried mother “to supply on the birth certificate at least two given names for the child, one of which shall serve as a surname for the child, except that the name of any known living male is forbidden. The mother of the child may also use the last given name as her name. The child’s last name may also be used to fill in any other data required by the birth certificate.” This clearly means that the law would premit [sic] a false entry upon a birth certificate. It is contrary to policy and logic to allow the furnishing of false information for public records. Deviation from veracity, legally permitted, is likely to open to doubt the truthfulness of all vital statistics.
The bills make no attempt to adjust the new provisions to the large number of statutes relating to names. Our books are full of enactments, civil and criminal, which deal with the use of assumed or false names. A well-framed bill with respect to names 37
of illegitimate children must take into consideration these other statutes, particularly those involving descent of property.
The proposed legislation would facilitate the concealment of the facts from the public authorities in relation to children born out of wedlock and would assist the fathers and mothers of such children in escaping responsibility for their care and support. This is contrary to the principles and practices of child welfare organizations dealing with unmarried mothers and their children.
I have received a great many communications from leading social welfare and child agencies through the State calling my attention to the inadvisability of approving these bills in their present form on the ground that they could do more harm than good. These protests, coming from organizations which have had practical experience in dealing with the problem presented by the birth of illegitimate children, all recognize the necessity for corrective legislation. I believe that sufficient studies have been made so that the State should be in a position to enact this legislation at the next session of the Legislature.
I am accordingly inviting a number of persons to serve as an unofficial commission to prepare comprehensive legislation dealing with this subject for consideration by the Legislature next year. This unofficial commission will co-operate with the various organizations interested in this subject, to formulate an effective law to afford illegitimate children the protection which they require and which the State owes them.
I am asking to serve as members of the Commission the following: Homer Folks, Chairman; Judge John Warren Hill of the Domestic Relations Court of New York City; Miss Frances Taussig; Monsignor Keegan; Robert Lane; William H. Matthews; Miss Jane Hoey; Mrs. Benjamin L. Buttenweiser; Stanley David; Judge Cecil B. Weiner of the Children’s Court of Buffalo; Charles J. Tobin; Judge George W. Smyth of the Children’s Court of Westchester; Dr. Solomon Lowenstein and Joseph J. Canavan.
The two bills are disapproved.
(Signed) HERBERT H. LEHMAN 38
APPENDIX D
The text of the laws of New York State that are cited in the body of the report is given below.
DOMESTIC RELATIONS LAW
Section 24. Effect of marriage of illegitimates. All illegitimate children whose parents have heretofore intermarried or who shall hereafter intermarry shall thereby become legitimatized and shall become legitimate for all purposes and entitled to all the rights and privileges of legitimate children; but an estate or interest vested or trust created before the marriage of the parents of such child shall not be divested or affect by reason of such child being legitimatized. Nothing in this article shall be deemed or construed to in any manner impair or affect the validity of any lawful marriage contract made before the passage of this article.
� 110. Definitions. 1. A child born out of wedlock is a child begotten and born; (a) Out of lawful matrimony; (b) while the husband of its mother was separate from her a whole year previous to its birth; or (c) during the separation of its mother from her husband pursuant to a judgment of a competent court.
� 113. Order. If satisfied that the moral and temporal interests of the person to be adopted will be promoted thereby, the judge or surrogate must take an order allowing and confirming such adoption and directing that the person to be adopted shall henceforth be regarded and treated in all respects as the child of the foster parent or parents. If the judge or surrogate is also satisfied that there is no reasonable objection to the change of name proposed, the order must also direct the name of the minor be changed to such name as shall have been designated in the instrument mentioned in the last section (embodying requisites of adoption). Such order must be filed and recorded in the office of the county clerk of such county and shall be open to the public. The fact of illegitimacy shall in no case appear upon the record. 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 court and such papers must be sealed by him and withheld from inspection. No persons shall be allowed access to such sealed records except upon an order of a court of record and such order shall not be granted except upon good cause shown. The surrogate may open, vacate, or set aside, an order for adoption for fraud, newly discovered evidence, or other sufficient cause, in like manner, as a court of record and of general jurisdiction exercises the same powers.
� 138. General Provisions. In all records, certificates or other papers hereafter made or executed, other than birth records and certificates or records of judicial proceedings in which the question of birth out of wedlock is at issue, requiring a declaration by or notice to the mother of a child born out of wedlock or otherwise requiring a reference to the relation of a mother to such a child, 39
it shall be sufficient for all purposes to refer to the mother as the parent having the sole custody of the child, and no explicit reference shall be made to illegitimacy.
GENERAL CONSTRUCTION LAW
� 59. Bastard; illegitimate child. The term “bastard” or “illegitimate child” in a statute means a child born out of wedlock. Hereafter in any local law, ordinance or resolution or in any public or judicial proceeding or in any process, notice, order, decree, judgment, record or other public document or paper, the term “bastard” or “illegitimate child” shall not be used, but the term “child born out of wedlock” shall be used in substitution therefor and with the same force and effect.
CIVIL PRACTICE ACT
� 329. Form of certificate. Where a transcript, exemplification on certified copy of a record or other paper, is declared by law to be evidence, and special provision is not made for the form of the certificate, in the particular case, the person authorized to certify, must state in his certificate that it has been compared by him with the original and that it is a correct transcript therefrom and of the whole of the original.
� 330. Certificate attested by seal. If the officer or the court, body or board, in whose custody is required to be, by the laws of the state or of another state or of the United States or of a territory thereof, or of a foreign country, has, pursuant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a country within the state, it must be attested by the seal of the county.
� 367. Certificate of officers as evidence of facts. Where a public officer is required or authorized by special provision of law, to make a certificate or an affidavit touching an act performed by him or to a fact ascertained by him in the course of his official duty; and to file or deposit it in a public office of the state; the certificate or affidavit so filed or deposited, or an exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated by special provision of law.
� 382. Proof of public records and papers. A copy of a paper filed, kept, entered or recorded, pursuant to law, in a public office of the state, the officer having charge of which has, pursuant to law, an official seal;…or a transcript from a record, kept, pursuant to law, in such public office, or by such a clerk or secretary, is evidence as if the original was produced. But, to entitle it to be used in evidence, it must be certified by…or by the officer having the custody of the original, or his deputy, or clerk, appointed pursuant to law, under his official seal, and the hand of the person certifying it. 40
PUBLIC HEALTH LAW
� 370. Registration of births and deaths; duties of state department of health. The state department of health shall have charge of the registration of births and deaths, shall provide the necessary instructions, forms and blanks for obtaining and preserving such records, and shall procure the faithful registration of the same in each primary registration of the same in each primary registration district as constituted by this article and in the division of vital statistics at the capital of the state. The said department shall be charged with the uniform and thorough enforcement of this article throughout the state and shall from time to time recommend any additional legislation that may be necessary for this purpose. The public health council may establish such rules and regulations supplementary to the provisions of this article and not inconsistent therewith, as it may deem necessary from time to time, in relation to the registration of births and deaths. Such rules and regulations shall be observed by all authorities upon whom duties are imposed by this article.
� 371. Duties of state commissioner of health as to vital statistics. The state commissioner of health shall have general supervision of the division of vital statistics which shall be established by the department of health….
� 374. Correction of defective registration. If defects be found in the registration under the supervision of a registrar of vital statistics the state commissioner of health shall notify such registrar that such defect must be corrected within ten days of the date of the notice. If such defects are not so corrected the state commissioner of health shall take control of such registration and of the records thereof, and enforce the rules and regulations in regard thereto and secure a complete registration in such district, and such control shall continue until the registrar of vital statistics shall satisfy the commissioner of health that he will make such record and registry as required by law and by the rules and regulations of the public health council….
� 382. Registration of births. The birth of each and every child born in this state shall be registered within five days after the date of each birth, there shall be filed with the registrar of the district in which the birth occurred a certificate of such birth which certificate shall be upon the form prescribed therefor by the state commissioner of health. In each case where a physician, midwife, or person acting as midwife is in attendance upon the birth, it shall be the duty of such physician, midwife or person acting as midwife, in attendance upon the birth, it shall be the duty of the father or mother of the child, the householder or owner of the premises where the birth occurred, or the manager or superintendent of the public or private institution where the birth occurred, each in the order named, within five days after the date of such birth, to report to the local registrar the fact of such birth. In such case and in case the physician, midwife or 41
person acting as midwife in attendance upon the birth is unable, by diligent inquiry, to obtain any item or items of information required in this article it shall then be the duty of the registrar to secure from the person reporting the birth or who may be interrogated in relation thereto to answer correctly and to the best of his knowledge all questions put to him by the registrar which may be calculated to elicit any information needed to make a complete record of the birth as contemplated by this article, and it shall be the duty of the informant as to any statement made in accordance herewith to verify such statement by his signature, when requested so to do by the local registrar.
� 383. Certificate of birth. The certificate of birth shall contain such information and be in such form as the state commissioner of health may prescribe. The personal particulars called for shall be obtained from a competent person acquainted with the facts. If the child dies without a given name, enter in the space provided for the name the words “Died unnamed.” If the living child has not yet been named at the date of filing certificate of birth, the space for the given name of the child is to be left blank, to be filled out subsequently by a supplemental report, as hereinafter provided.
If the child is illegitimate, the name of the putative father shall not be entered without his consent, but the other particulars relating to the putative father may be entered if known, otherwise as “unknown.”
The certificate shall be signed by the attending physician or midwife, with date of signature and address; if there was no physician or midwife in attendance, then by the father or mother of the child, householder, owner of the premises, manager or superintendent of public or private institution where the birth occurred, or other competent person whose duty it shall be to notify the local registrar of such birth.
The registrar shall enter the exact date of filing of the certificate in his office attested by his official signature and registered number of birth.
� 385. Registration of physicians, midwives, and undertakers. Every physician, midwife and undertaker shall, on or before the day on which this article takes effect, register his or her name, address and occupation with the registrar of the district in which he or she may hereafter establish a residence or maintain an office; and shall thereupon with such rules and regulations as may be prepared by the public health council relative to its enforcement….
� 387. Records to be kept by state commissioner of health. The state commissioner of health shall prepare, print and supply to all registrars all blanks and forms used in registering, recording and preserving the returns, or in otherwise carrying out the purposes of this article, and shall prepare and issue such detailed instruct- 42
tions, not inconsistent with the regulations established by the public health council, as may be required to procure the uniform observance of its provision and the maintenance of a perfect system of registration; and no other blanks shall be used than those supplied by the state commissioner of health. He shall carefully examine the certificates received monthly from the registrars, and if any such are incomplete or unsatisfactory he shall require such further information to be supplied as may be necessary to make the record complete and satisfactory. All physicians, midwives, undertakers, or informants, and all other persons having knowledge of the facts, are hereby required to supply, upon a form provided by the state commissioner of health or upon the original certificate, such information as they may possess regarding any birth or death upon demand of the state commissioner of health, in person, by mail, or through the registrar; provided, that no certificate of birth or death, after its acceptance for registration by the registrar, and no other records made in pursuance of this article, shall be altered or changed in any respect otherwise than by amendments properly dated, signed and witnessed. The state commissioner of health shall arrange, and permanently preserve the certificates in a systematic manner, and shall prepare and maintain a comprehensive and continuous typewritten or printed index of all births and deaths registered; said index to be arranged alphabetically, in the case of deaths, by the names of decedents, and in the case of births, by the names of fathers or mothers if born out of wedlock….
� 388. Certified copies of birth certificates evidence of age. Certified copies of birth certificates, or of statements based on duly registered certificates of birth shall be accepted by public school authorities in this state as prima facie evidence of age of children, registering for school attendance, and by the legally constituted authorities as prima facie proof of age for the issuance of employment certificates, provided that when it is not possible to secure such certified copy of birth registration certificate for any child, the school authorities may accept as secondary proof of age any kind of evidence specified in the labor law.
� 389. District records to be kept by registrar. Each registrar shall supply blank forms of certificates to such persons as require them. Each registrar shall carefully examine each certificate of birth or death when presented for record in order to ascertain whether or not it has been made out in accordance with the provisions of this act and the instructions of the state commissioner of health;…all certificates, either of birth or death, shall be written legibly, in durable black ink, and no certificate shall be held to be complete and correct that does not supply all of the items of information called for therein, or satisfactorily account for their omission….If a certificate of birth is incomplete, the local registrar shall immediately notify the person who signed the record, and require him to supply the 43
missing items of information if they can be obtained. He shall number consecutively the certificates of birth and death, in two separate series, beginning with the number one for the first birth and the first death in each calendar year, and sign his name as registrar in attest of the date of filing in his office. He shall also make a complete and accurate copy of each birth and each death certificate registered by him in a record book supplied by the state commissioner of health, and shall file the permit for each burial or cremation in his district, to be preserved permanently in his office as the local record in such manner as directed by the state commissioner of health. Within ten days after receiving the certificate of any legitimate birth he shall furnish to the parents or guardian of the child a certificate of registration, to be made out on a form which shall be furnished by the state commissioner of health; and such certificate of registration shall be accepted by public authorities in this state for the purposes indicated in section three hundred and eighty-eight of this chapter in the same manner as certified copies of birth certificates; he shall also make a notation on this copy of the original birth certificate indicating the date of issuance of such certificate of registration. He shall, on the fifth day of each month, except in a registration district which is a part of the county health district, and the state commissioner of health shall have otherwise ordered, transmit to the state commissioner of health all original certificates registered by him for the preceding month, and also any delayed certificates registered by him during the month….A local registrar may charge a fee of twenty-five cents for a search or fifty cents for a verified transcript of any record of a birth or death recorded in his district, provided, however, that no fee shall be charged for certifications, or transcripts to be used for school entrance, employment certificates, or for purposes of government compensation….
� 391. Certified copies of records; state commissioner of health to furnish. The state commissioner of health or person authorized by him shall, upon request, supply to any applicant a certified copy of the record of any birth or death registered under the provisions of this act, unless he is satisfied that the same does not appear to be necessary or required for judicial or other proper purposes. He shall be entitled to a fee of one dollar for each certified copy of a record of any birth or death, to be paid by the applicant; provided that the United States census bureau may obtain, without expense to the state, transcripts of certified copies of births and deaths without payment of fee here prescribed, for use solely as statistical data. Any copy of the record of a birth or death, when properly certified by the state commissioner of health or persons authorized to act for him shall be prima facie evidence in all courts and places of the facts therein stated….
� 392. Penalties….Whenever any physician, midwife, or other person shall fail or neglect to properly record and file 44
a certificate of birth as required by this article such person shall be liable to a penalty of not less than five dollars nor more than fifty dollars for the first and second offenses, which penalty may be recovered by an action brought by the state commissioner of health in any court of competent jurisdiction, and for every subsequent offense, such person shall be guilty of a misdemeanor, punishable by a fine of not less than ten nor more than one hundred dollars, or by imprisonment for not more than sixty days, or both.
� 394. Exemptions. Nothing in this article shall be construed to affect, alter, or repeal laws now in force applying to the city of New York. 45
APPENDIX E
The text of the portions of the Greater New York City Charter that are cited in the body of the report is given below.
“Section 1168. Authority, duty and powers of the board of health…All authority, duty and powers heretofore conferred or enjoined upon the health departments…in any of the municipal and public corporations…and by giving and granting to the health departments, boards of health and sanitary officers, or any of them, duties an powers not inconsistent with the provisions of this act, are hereby conferred upon and vested in and enjoined upon, and shall hereafter be exclusively exercised in the city of New York by the department of health….”
“� 1172. Sanitary code….Said board of health is hereby authorized and impowered from time to time, to add to and alter, amend or annul any part of the said sanitary code and may therein…confer additional powers on the department of health, not inconsistent with the constitution or laws this state [sic], and may provide for the enforcement of the said sanitary code by such fines, penalties, forfeitures, or imprisonment as may by ordinance be prescribed….Copies of the records of the proceedings of said board of health, or its rules, regulations, by-laws and books and papers constituting part of its archives, or hereafter in force in said city, when authenticated by its secretary or secretary pro tempore, shall be presumptive evidence, and authentication taken as presumptively correct in any court or justice, or judicial proceeding when they may be relevant to the point or matter in controversy, of the facts, statements, and recitals therein contained….”
“� 1175. Publication of the reports and statistics. The board of health may establish as it shall deem wise and to promote the public good and public service, reasonable regulations as to the publicity of any of the papers, files, reports, records, and proceedings of the department of health; and may publish such information as may, in its opinion, be useful, concerning births, deaths, marriages, sicknesses, and the general sanitary conditions of, said city, or any matter, place or thing therein.”
“� 1181. Borough offices to be maintained. The board of health shall establish and maintain in the boroughs of Manhattan, the Bronx, Brooklyn, Queens and Richmond, offices wherein the business and duties of the department of health shall be performed and discharged under its rules, regulations and control. In such borough offices, the board of health shall preserve the records, files, reports and papers belonging and pertaining to the boroughs in which the office is located.”
“� 1237. It shall be the duty of the parents of any child born in said city (and if there be no parent alive that has filed such 46
report, then the next of kin of such child born) and of every person present at such birth, within ten days after such birth, to file a report with the department of health, in writing, stating, so far as know, the date, borough, and street number of said birth, and the sex and color of such child born, and the names, residence, birth place and age of the parents, the occupation of the father and the maiden name of the mother. It shall also be the duty of the physicians and professional midwives to keep a registry of the several births in which they have assisted professionally, which shall contain, as near as the same can be ascertained, the time of such birth, name, sex, and color of the child, the names, residence, birthplace and age of the parents, occupation of the father and maiden name of the mother and file a report of the same within ten days with the said department of health.”
“� 1239. Penalty for failure to report marriages and births to department of health. For every omission of any person to make and keep the registry of marriages and births required by the preceding sections, and for every omission to file a written copy of the same with said department of health, within ten days after any birth or marriage provided to be registered, and for every omission to or failure, after the expiration of ten days, to comply with an order of the board of health requiring that any such report of a death, birth or marriage be filed with the department of health. The person guilty of such omission shall be guilty of a misdemeanor and in addition thereto the offender shall also be liable to pay a fine of one hundred dollars, to be recovered, in the name of the department of health of the city of New York, before any justice or tribunal in said city having jurisdiction of civil actions. But no person shall be liable for such fine…if such report has been filed by any other person, or if an excuse is presented…in which event the said commissioner of health is hereby empowered to excuse the said omission….”
“� 1240. The department of health shall keep a record of the births, marriages and deaths filed with it, the births shall be numbered and recorded in the order in which they are received by it; and the record of births shall state the place and date of birth, the name, sex and color of the child, the names, residence, birth place and age of the parents, occupation of the father and maiden name of mother, as fully as they have been received and the time when the record was made….”
“� 1241 …and the births of children which failed to be recorded through the neglect of the physician or other medical attendant present at such birth, may be recorded in the bureau of records of the health department of said city, upon the application in such behalf by the parents or guardians of such children. Such application shall be made to the commissioner of health, and shall be accompanied by a certificate of the physician or midwife attending professionally at such birth, and personally cognizant thereof, together with the affidavit of at least two citizens, certifying to their knowledge of the facts and that the physician or midwife 47
making such certificate of birth is a reputable person in good standing in the community in which he or she may reside. Where no physician or midwife attended professionally at such birth, the application to record such delayed birth certificate shall, in addition to the affidavits above mentioned, be accompanied by a certificate signed by the father, mother or guardian upon a form prescribed by the said department of health…said bureau of records in said city, without proof satisfactory to and upon the approval of the said commissioner of health. The said commissioner of health may, however, delegate, in writing, such power to the registrar of records of the department of health for such period and to such extent as shall be specified in such delegation. Transcripts of any record in said bureau of records may be given, in the discretion of the department of health, to a parent or the next of kin of the person relating to whom the record was filed, or said latter person’s duly authorized representative. Such transcripts shall be on such forms as the commissioner of health may prescribe, and for them the usual fees for copies of records may be received.”
“� 1266. False returns and deceptive reports, how punished. If any person shall knowingly make to or file with said department of health, of any office thereof, any false return, statement or report relative to any birth, death, or marriage, or any other matter concerning which a report or return may be legally required of, or should be made by such person; or if any member, inspector or officer, or any agent of said department of health shall knowingly make to said department of health any false or deceptive report or statement in connection with his duties, or shall accept or receive, or authorize or encourage, or knowingly allow any other person to accept or receive any bribe or other compensation as a condition of or an inducement for not faithfully discovering and fully reporting, or otherwise acting, according to his duty in any respect, then any and every such person shall be deemed guilty of a misdemeanor, punishable by imprisonment of not more than one year or by a fine of not more than five hundred dollars and, if an officer or employee of the department, by the forfeiture of his office, rank or position, and shall be liable to be for such crime indicted, tried and punished according to law, and shall, in addition, forfeit all compensation due or to grow from said department.” 57
APPENDIX G
STATEMENT ON DRAFT OF PROPOSED LAW
There has been prepared in connection with this report a bill embodying the recommendations made herein and approved by the Commission. Copies of the bill have been sent to the members of the Commission. The form of this bill has been considered by the Counsel to the Bill Drafting Commission at Albany, Seymour Ellenbogen, and the substance thereof approved by him on April 9th, 1936. It is felt that the bill, if passed, will produce the results desired by the recommendations made in this report, and also that its provisions can fit into any possible future recommendations that may be made as a result of a further study as recommended in Appendix H.
Due to the impossibility of revising the entire Public Health Law at this time, and to the patchwork character of the existing statutes, it must be realized that the changes recommended to be embodied in law will likewise be of a patchwork nature. However, since the matters involved will concern themselves primarily with the Health officers and other government officials who understand the background of the situation and can be easily made familiar with the theory of the bill, no practical difficulty need be anticipated. The principal officials involved have already been consulted and have approved of the recommendations in substance. Since it is understood that administrative regulations will have to be prepared in order to carry out the purpose of this bill, when and if enacted, it is expected that those who have worked on the preparation of such bill and this report will be willing to cooperate with the administrative officials in the preparation of such regulations, including forms, necessary to carry out the recommendations made in this report and in the bill. 58
APPENDIX H
RECOMMENDATION FOR A FUTURE STUDY
In view of the limited time and resources at our disposal, and the determination of the Commission at its organization meeting, it proved impossible to make any comprehensive study of the general subject of illegitimacy, and the project was confined to the limited field of registration of birth for children born out of wedlock. Such a comprehensive study would be a distinctly desirable and valuable one; if it is desired, it is respectfully recommended that such a study be authorized by the legislature or otherwise with an appropriation to permit it to be adequately performed.
This problem is especially deserving of consideration by the State, because as a practical matter there are two classes of illegitimate children. The general group resulting from situations of poverty or ignorance, and the smaller group where the parent or parents are wealthy and represent a so-called high level of society. The latter group is able by economic and other advantages to avoid perhaps unfortunate consequences under the present law, which the former group cannot avoid. However, from the point of view of the child who is the innocent victim of the situation, there should be no unfortunate consequences which the law can possibly avoid. This should be true even though a change in the law or practice would not give to the child born out of wedlock the personal benefits of a father’s care, or the other benefits that presumably result to a child born in wedlock under our present system.
Such a study should examine the existing legal disabilities imposed upon the children who are born out of wedlock, and other problems directly related to the question of illegitimacy, such as the following:
1. Consideration of the inheritance laws of New York State with reference to the discriminations against children born out of wedlock and against adopted children. In this connection consideration should be given to the changing of the present and proposed provisions in the law considered necessary under the present setup of our inheritance law, such as the provision that the name of the putative father shall not be inserted in a birth report without his consent, and the proposed provisoin [sic] that the notation “by adoption” be made on new birth records in the case of adopted children.
2. Consideration of the desirability of a declaratory statute that would declare it to be the policy of the State to recognize every child as the legitimate child of its natural parents and that all children, whether born in or out of wedlock, have equal rights and privileges in every respect. Arizona has attempted to deal with this problem by a statute which provides that “every child is the legitimate child of its natural parents. This section shall apply to cases where the natural father of a child is married to one other than the mother of said child, as well as where he is single.” In the consideration 59
of such statute matters such as inheritance should be taken into account.
It should be pointed out that the former State Commissioner of Health, Dr. Thomas Parran, Jr., has expressed approval of such a statute in a letter to the writers of this report. He stated “I earnestly hope that the Commission will find it possible to base its final report on the humane concept that ‘all children are legitimate’.”
3. Consideration of the need for a centralized agency, state or otherwise, to provide appropriate machinery for the determination of paternity. This has also been suggested, by many others, including Dr. Parran. Two states, Minnesota and Wisconsin, provide some state machinery for the adjudication of such a question. Consideration should be given to the possibility of such procedure and in that connection a study made as to the inter-relation of the same with inheritance laws.
4. Consideration of the general problem of names and the underlying legal bases of this question.
5. Consideration of a general revision of the Public Health Law of New York State to simplify and clarify the law by eliminating the confused terminology in regard to birth reports; birth records; and records of birth; birth notifications and birth certificates; and certified copies of birth records; and creating proper definitions therefor. In that connection the possible transfer of the New York City Charter provisions in connection therewith to the State law (a matter preliminarily discussed with Lawrence Tanzer, Associate Counsel to the New York City Charter Commission) might also be considered. 60
APPENDIX I
Practices and laws of other states and other pertinent material discussed in the body of the report are given below.
I. Question of “Legitimate?” on Birth Reports
There are three states that do not have the question, “Legitimate?” or a variation on it, such as “Are parents married?” or “Is mother married?”, on the forms of their birth reports.
California, (Statutes and Amendments to Code, 1933, Chapter 489, Section 14) specifically enumerates thirty-two items that should be included on the certificate of birth. There is no provision or item as to the marital status of the parents, or as to the legitimacy of the child.
New Hampshire, (Public Laws, 1926, Chapter 285, Section 1) also provides for the facts to be included on the certificate of birth or birth report. There is no provision or item as to the marital status of the parents, or as to the legitimacy of the child.
Massachusetts (General Laws of Mass. 1932, Chapter 46, Section 1, as amended by Chapter 280 of Acts of 1933) has a slightly different setup with the result that recordations of illegitimacy are not completely eliminated. The law provides that
“Each town clerk shall receive or obtain and record in separate columns the following facts relative to births, marriages and deaths in his town:
In the record of births, date of record, date of birth, place of birth, name of child, his sex and color, places of birth and residence of his parents, including the maiden name of the mother and occupation of the father. In the record of birth of an illegitimate child, the name of and other facts relating to the father shall not be recorded except on the written request of both father and mother.
The term illegitimate shall not be used in the record of a birth of a child to a single woman, nor in the record of such birth to a married woman unless the illegitimacy has been legally determined or has been admitted by the sworn statement of the woman and her husband, or if the town clerk is satisfied that both the woman and her husband cannot be located, by the sworn statement of either of them and by evidence beyond all reasonable doubt to substantiate such statement, which statement and evidence have been submitted by the town clerk to a judge of probate or to a justice of a district court, and have been approved by such judge or justice.”
An interesting, but unsatisfactory, situation exists in North Carolina, where it is provided that
“in illegitimate births the word ‘illegitimate’ shall be written across the face of the certificate, and all items on the certificate
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which would in any way reveal the identity of the father, mother or illegitimate child shall itself be omitted.”
(North Carolina Carolina Consolidated Statutes, Sub-Chapter 2, Article 6, Section 7102 PP 8).
II. Birth Certificates, Birth Notifications and Certified Copies.
There is frequently needed in the life of the average person, some form of evidence to prove his date and place of birth. In the majority of states simplified birth certificates are issued which certify as to the age and place of birth of a child, the certificates being accepted as proof of age for purposes such as work permits, automobile licenses, and school entrance. General authority is given to the state department of health, in most of the states to prescribe whatever forms or certificates that they see fit in certifying as to facts on birth records.
About three-fifths of the states have adopted the standard form called Notification of Birth Registration, for the official notification to parents that the birth of their child is registered. This standard form is issued to the mother of the child within a short time after its birth report is accepted, and is prepared by the Bureau of the Census. It contains the following facts of the child: (1) name, (2) sex, (3) date of birth, (4) place of birth, (5) name of father, and (6) maiden name of mother. This type of notification, besides being used as evidence of age when necessary, serves in addition as a medium for checking back the state records, for on the back of the standard form, a note requests the parents to report any errors so that corrections may be made. A few of the states that do not use the standard form of Notification, use forms similar to it. It is usually the practice of the states to issue such Notifications without charge to the parents.
The Notifications or birth certificates in popular use in other states do not directly show, in themselves, that the child is one born out of wedlock, but the fact that on these forms the name of the father is blank, and the name of the child and of the mother are the same, raises a presumption of illegitimacy. It is desirable therefore, to have the name of the parents omitted on all of these forms.
A few states recognizing the problem, have provided some safeguards. Some states such as Michigan, New York, Pennsylvania, and Virginia do not send Birth Notifications to mothers of illegitimate children except on special request. Only a handful of the states, however, have adopted forms which do not include the name of the parents. Some of them are Illinois, New Jersey, Rhode Island, and Utah, which give information as to the name, date and place of birth of the child, and Virginia, which uses a special card showing the name, sex, and date of birth of the child, said card being used for children born out of wedlock, and serving as a mother’s certificate and for school and work certificates. Wisconsin utilizes an abridged form which omits the name of the father. Its form provides for the name, date and place of birth of the child, 62
and the maiden name of the mother, and it is used as a birth notification and “for all general purposes”.
Certified copies of birth records, in the form of written transcripts or photocopies, are issued in every state under conditions varying in the different states. Fees for these certified copies range from twenty-five cents to one dollar.
III. Correction of Birth Records
A. Upon the Legitimation of a Child.
Almost every state in the union allows a correction of the birth record so as to show as legitimate one who has been legitimized by the marriage of his or her parents. Most of the states make a correction or amendment to the birth record as a matter of practice without any express authorization by statute. Only five states provide by statute for the correction of the birth record so as to show such a child is legitimate. These states are:
Maine, Laws of 1933, Ch. 1, Section 70-A
Massachusetts, General Laws, 1932, Ch. 46, Section 13.
Michigan, Compiled Laws 1929, Section 6589 as amended by Act 172, P. A. 1933.
Minnesota, Mason’s Statutes 1927, Section 5365D.
New Jersey, Laws of 1935, Ch. 104.
It is the practice in some states after such legitimation to redpencil the NO after the question “Legitimate?”, and to place a YES or an asterisk or some other sign to indicate the change. A few states redpencil the NO, but may not include the YES to indicate the change.
In only one state, is there provision at the present time for the issuance of a new birth record upon the legitimation of a child by the marriage of its parents. Illinois provided for this law in 1933, when it enacted the following:
“Sec. 13b. Whenever the parents of an illegitimate child intermarry before a certificate of birth is filed as required by this act, such child shall be considered legitimate and the certificate of birth shall be made accordingly.
In any case when the parents of an illegitimate child have intermarried after a certificate of birth is filed as required by this act, a certificate of such marriage may be recorded with the department of public health and a new certificate of birth shall issue upon request in the same form as certificate of birth for a legitimate child. The department of public health shall also send copies of the new certificate of birth to the local registrar and the county clerk of the district where the birth occurred. The local registrar and county clerk shall substitute for the copies previously filed, and shall send the copies previously filed to the department of public health….” (Illinois Revised Statutes 1935, Ch. 65a, Section 29 (2)).
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B. Upon the Adoption of a Child.
The majority of the states allow a correction in the birth record so as to give the name of the foster parents in the cases of children who are adopted. Many of these states do it as a matter of practice, implying their power to do so from some general provision in the law. Ony [sic] a few of the states have specific statutory provisions calling for a change in the birth record when a child has been adopted. Among them are:
Alabama, Laws of 1931, No. 405.
Arkansas, Laws of 1935, Act 137, Section 11.
California, Laws of 1933, Ch. 489, Section 15a, as amended by Laws of 1935, Ch. 608.
Illinois, Revised Statutes 1935, Ch. 65a, Section 29 (1) added by L. 1931, P. 734.
Maine, Revised Statutes 1930, Ch. 80, Section 37, as amended by Laws of 1935, Ch. 49.
Massachusetts, General Laws 1932, Ch. 46, Section 13.
Ohio, Throckmorton’s Code, Sections 6266, 6267.
Pennsylvania, Laws of 1935, Ch. 207.
Texas, Laws of 1935, Ch. 179, Subsection 26.
Wisconsin, Statutes 1933, Section 69-605, amended by Laws of 1935, Ch. 170.
An illustration of a typical statute is the one enacted in California.
“Whenever a decree of adoption has been entered declaring a child legally adopted in any superior court in the state of California a certificate of the decree shall be recorded by the clerk of the court with the state registrar of vital statistics upon a form provided for that purpose. This shall be filed with the original record of birth, which shall remain as a part of the records of the state bureau of vital statistics, but which shall not be accessible to any one except upon request of the child or his foster or natural parents or upon order of a court of record. Upon request a certificate of birth shall be issued bearing the name of the child as shown in the decree of adoption, the names of the foster parents of said child, the age of the foster parents, the sex, date of birth and place of birth, but no reference in any birth certificate shall have reference to the adoption of said child.”
Of this group, there are three states that provide by statute for the preparation and filing of a new birth record upon the adoption of a child, the new birth record to be substituted for the original one. These states are:
Alabama, Laws of 1931, No. 405, PP. 504, 507.
Illinois, Revised Statutes 1935, Ch. 65a, Section 29 (1) added by L. 1931, P. 734.
Texas, Laws of 1935, Ch. 179, subsection 26. 64
The Texas law reads as follows:
“Upon receipt of copy of any final order of adoption the state registrar of vital statistics shall cause to be made a record of the birth in the new name or names of the adopting parents or parent. He shall then cause to be sealed and filed the original certificate of birth, if any, with the adoption decree of the court and such sealed package may be opened only upon order of a court of record. Upon receipt of copy of annulment of adoption said registrar of vital statistics shall restore the original name of the child and the names of his natural parents or parent to the record of birth of such child. Provided further that adoption made under existing law prior to the passage of this act, may be registered with the bureau of vital statistics upon sworn application of either adoptive parent or guardian of the adopted child, show the names of and addresses of the natural parents if known or of the child’s next kin, the date of birth and the name of such child before and after adoption, the names and addresses of foster parents, together with proof of adoption, either by certified copy of the record of the affidavit of adoption, or the court order of adoption.”
IV. Reporting by Court Clerk.
A. Paternity Proceedings.
Only five states have laws providing for direct notification to the registrar of vital statistics of the determination of paternity by judicial proceedings. The statutes of these states require the court clerk to report the name of the person against whom such judgment has been entered, with any other additional information to assist in identifying the record of birth of the child. Thus it is felt that all information concerning the descent of the child is gathered in its proper place, the birth record. States that require clerks to report adjudications to the registrar are:
Iowa, Code 1931, Section 12667-a53.
Minnesota, Mason’s Statutes 1927, Sections 3272 (b) and 5365-A.
Rhode Island, Laws of 1926, Ch. 843, Section 12.
West Virginia, Code 1931, Ch. 16, Article 5, Section 14 (h).
Wisconsin, Statutes, 1933, Section 16611 (2).
The statutes in force in Minnesota illustrate the provisions being used in these states:
“Upon the entry of a judgment determining the paternity of an illegitimate child the clerk of the district court shall notify in writing the state registrar of vital statistics of the name of the person against whom such judgment has been entered, together with such other facts disclosed by his records
65
as may assist in identifying the record of the birth of the child as the same may appear in the office of said registrar. If such judgment shall thereafter be vacated that fact shall be reported by the clerk in like manner.” Section 3272 (b).
“5365-A. Judgment of Paternity; Facts to be Recorded. Whenever the clerk of the district court shall report to the state registrar that a judgment has been entered determining the paternity of an illegitimate child, the state registrar shall record the name of the father, and sufficient data to identify the judgment, in connection with the record of the death of the child, appearing in his office, and also in connection with the record of the death of the child, if there be such record. A report by the clerk of the subsequent vacation of such judgment shall be recorded in like manner.
Likewise whenever any district court shall enter a judgment that nay person named on a birth certificate or death certificate, as the father of an illegitimate child, is not in fact the father of such child, the clerk of such court shall forward to the state registrar and to the local registrar of the district in which such birth or death is reported, a copy of its judgment; whereupon, it shall be the duty of such registrars, to make such corrections as to the statement of paternity on such birth or death certificate, and to attach to the original, or to his record of the original, a copy of such judgment.
B. Adoption Proceedings.
Within the last three years a number of states have by statute required the court clerk to report all decrees of adoption in the state to the state registrar of vital statistics. The decree of adoption is recorded with the vital statistics bureau and certificates of birth are issued bearing the new name of the child as shown in the decree of adoption, the names of the foster parents, etc. It is usually also incumbent on the clerk to report any annulments of adoptions. States that require the clerks of the appropriate courts to report adoptions to the registrar are:
Alabama, Laws of 1931, No. 405.
Arkansas, Laws of 1933, Act 137.
California, Laws of 1933, Ch. 489, as amended by Laws of 1935, Ch. 608, Section 15a.
Delaware, Laws of 1933, Ch. 163.
Georgia, Code of 1933, Section 74-405 (requiring that the adoption decree “shall be filed with the State Board of Health”).
Maine, Revised Statutes 1930, Ch. 80, Section 37, as amended by Laws of 1935, Ch. 49.
North Carolina, Laws of 1933, Ch. 207, Section 6.
Texas, Laws of 1935, Ch. 179, Subsection 26. 66
An example of the type of provision enacted is seen by the following Delaware statute:
“In the event of any court in any county of Delaware having sanctioned the adoption of any individual under conditions of the assumption on the part of the individual of any name or names other than those under which the birth of the individual is or may be registered with the state registrar, the clerk of the court in which such application was made shall immediately report the circumstance to the state registrar, the report indicating both the name given to the child at its birth, and the name given to it by the court permitting or legalizing the adoption, the date of the adoption and such other matters thereto as may be required.” (Delaware, Laws of 1933, Ch. 163.)
V. Foundlings.
The registration of births of foundlings has created a problem that has been dealt with in only a few states. Two of our states, Illinois, and Wisconsin, enacted laws in 1933 providing for the finder of an unknown child to report information about the child to the local registrar of vital statistics. In 1935, California passed a similar statute. The sex and color of the child, the date and the place of finding, and the approximate date of birth of the child composed the necessary information.
States that have a statutory provision for foundlings are:
California, Laws of 1935, Ch. 608, Section 15b.
Delaware, Laws, 808B, Section 73B.
Illinois, Revised Statutes, 1935, Ch. 65a, Section 29 (3).
Wisconsin, Statutes, 1933, Section 69-27.
The manner in which these statutes seek to give the foundling some form of birth certificate may be seen from this section of the California law:
“Sec. 15b. The finding of an unknown child less than one year of age shall be immediately reported to the local registrar of vital statistics. Such report shall show the sex and color of the child, the date and place of finding the child, and the name of the person or institution with whom it is placed. The city, town or rural district in which the child is found shall be known as the legal place of birth, and the date of birth shall be determined as nearly as possible and shall be given on the certificate and shall be known as the legal date of birth. The person or institution with whom the child is placed shall give said child a name and shall report the same to the local registrar. The certificate of finding shall be forwarded to the state registrar with the regular monthly report of births, and shall be filed and indexed by him with the regular birth certificates. If the child shall later be identified and a certificate of birth 67
found or obtained, such fact shall be reported to the state registrar and he shall indorse it upon the certificate of finding, with citation to the certificate of birth (as amended 1933).”
VI. Sealing of Replaced Records.
There are three states that have recently enacted into law provisions for the sealing of the original birth records in certain situations. One of the states, Illinois, provides for a new birth record upon the legitimation of a child by the future marriage of the parents, whereas the other two, Alabama and Texas, provide for a new birth record only in the case of the adoption of a child.
The pertinent Illinois law is:
“…The local registrar and county clerk shall substitute such copies of the new certificate of birth for the copies previously filed, and shall send the copies previously filed to the department of public health. The department of public health shall put the certificate of marriage filed, the original certificate of illegitimate birth, and the copies sent by the local registrar and county clerk in a sealed package. Such sealed package shall not be opened except upon order of a court of record.” (Illinois, Revised Statutes 1935, Ch. 65a, Section 29 (2)).
The Texas statute affecting adoptions substantially follows the procedure of the Alabama law. (Texas, Acts of 1935, Ch. 179.)
The relevant portion of the Alabama law is:
“Upon the entry of a final order of adoption the judge or the clerk of the court shall notify the state child welfare department of the action taken, giving the names and addresses of the foster parents. Said child welfare department shall likewise be notified of any subsequent revocation of such order of adoption or of any annulment of adoption. Copies of all reports of adoptions and reports of revocations of order of adoption and of annulments shall be mailed to the registrar of vital statistics of the state department of health. Upon receipt of copy of any final order of adoption the state registrar of vital statistics shall cause to be made a new record of the birth in the new name, and with the name or names of the adopting parent or parents. He shall then cause to be sealed and filed the original certificate of birth with the decree of the court, and such sealed package shall only be opened upon the demand of said child, or his natural or adopting parents, or by order of a court of record. Upon receipt of copy of order of annulment of adoption, he shall restore the original name of the child and the names of his parents to the record of birth of such child….” (Code of Alabama, Section 9302, as amended by Laws of 1931, No. 405.)
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VII. Court Order for Transcript of Records.
Many states have placed definite limitations on the conditions under which transcripts of birth records may be furnished. About one-quarter of the states consider birth records confidential by direct provisions in the law; about one-quarter have no direct legal provision, but consider records confidential under the regulations of the department of health or by an opinion of the attorney-general of the state; and nearly one-half of the states have no legal provision or administrative regulation. The majority of the states in the first two groups consider all the records of birth confidential, whereas only a few of the states consider only the records of births of illegitimate children confidential. States that consider part or all of their records as confidential require the applicants to prove that they are entitled to the same. States that have no limitations on the issuance of transcripts issue them to any person on request or on payment of the required fee. It is thought that the requirement of a fee for a transcript deters those who seek a copy merely to satisfy curiosity. Such a system allows the complete information concerning the status of a mother and her child to be available to any person whatsoever.
Wherever requests are made for transcripts of records of children born out of wedlock those state departments of health that are not required to issue transcripts on request issue them only after very careful inquiry as to the use that the applicant is going to make of them. Some states have dealt with the problem by having specific requirements that no transcripts of birth records of children born out of wedlock shall be issued except upon court order or on the request of the child, his parents, or his legal guardian.
Several state health departments having general discretionary power, have adopted the policy of requiring a court order before issuing a copy of a birth record of an illegitimate child to outsiders.
A statutory provision of one state, Virginia, allows the State Registrar to decline to issue transcripts except on court order or the request of the guardian of the child (Virginia, Annotated Code 1930, Section 1580).
Nine states have provided for such protection by statutory provision. These states are:
Colorado, Laws of 1925, Ch. 133, Section 7.
Kansas, Revised Statutes 1923, Section 65-142, as amended by Laws of 1935, Ch. 230.
Massachusetts, Chapter 46, General Laws, Tercentenary Edition, as amended by Laws of 1933, Ch. 279, Section 2A.
Michigan, Compiled Laws, 1929, Section 6584, as amended by Act 105 of Public Acts of 1933.
Minnesota, Masons Statutes, 1927, Sections 5365B and 5366.
New Jersey, Chapter 104, Laws of 1935, Section 1.
Texas, Laws of 1927, Ch. 41, Section 14, as amended by Laws of 1929, Ch. 4. 69
West Virginia, Code of 1931, Ch. 16, Art. 5, Section 20 (only to get personal or property rights).
Wisconsin, Statutes 1933, Sec. 69.26 as amended by Laws of 1935, Ch. 41.
Characteristic statutes are the ones of Minnesota and New Jersey which states:
“Fact of illegitimacy not to be disclosed….Exception. Except when so ordered by a court of record no member of the state board of health, nor any state or local registrar, nor any person connected with the office of either, shall disclose the fact that any child was illegitimate” (Minnesota Section 5365B).
“No official in this state shall issue a birth certificate revealing or disclosing illegitimacy; provided, that a certificate may be issued disclosing such information in response to court process or subpoena or in response to the request of the illegitimate, his or her guardian or legal counsel” (New Jersey Chapter 104, Laws of 1935).
Illinois, after providing for a new birth record in cases of legitimation by the future marriage of the parents, puts the original record of illegitimate birth, and other pertinent data in a sealed package, and states by law that
“Such sealed package shall not be opened except upon order of a court of record” (Illinois Revised Statutes, 1935, 13b, para. 29 (2), added by Laws of 1933, p. 838).
Moreover, the so-called Uniform Illegitimacy Act which was drafted and approved by the National Conference of Commissioners on Uniform State Laws in 1922, also apparently tries to prohibit disclosure of the facts on transcripts of birth records of children born out of wedlock, by recommending the following provision:
“Reference to relation of mother and child. In all records, certificates, or other papers hereafter made or executed, other than birth records and certificates or records of judicial proceedings in which the question of birth out of wedlock is at issue, requiring a declaration by or notice to the mother of the child born out of wedlock, or otherwise requiring a reference to the relation of a mother to such child, it shall be sufficient for all purposes to refer to the mother as the parent having the sole custody of the child or to the child as being in the sole custody of the mother, and no explicit reference shall be made to illegitimacy, and the term natural shall be deemed equivalent to the term illegitimate when referring to parentage or birth out of wedlock.”
Two states have recently provided protection of birth records for children who are adopted. Both states provide that the original 70
birth records shall be available only on court order or on the application of the adopting parents or of the adopted person.
California, Laws of 1933, Ch. 389, as amended by Laws of 1935, Ch. 608.
Connecticut, Laws of 1935, P. 21, Section 64C.
Three states provide by statute for the issuance of a new birth record in the case of adopted children, causing the original record and court decree to be sealed, These states are:
Alabama, Laws of 1931, No. 405, PP. 504, 507.
Illinois, Revised Statutes, 1935, Section 13a, P. 29 (1), added by L. 1931.
Texas, Laws of 1935, Ch. 179, Subsection 26.
Alabama allows the sealed package to be opened only:
“Upon the demand of said child, or his natural or adopting parents, or by the order of a court of record,”
whereas Illinois and Texas allow the seal to be broken only upon order of a court of record.
VIII. Declaratory Statute.
In 1921, Arizona abolished the distinctions between children born in and out of wedlock. Its statute provides that every child is the legitimate child of its natural parents and may inherit and transmit accordingly. The wording of the statute is as follows:
“All children declared legitimate.
Every child is the legitimate child of its natural parents and is entitled to support and education as if born in lawful wedlock, except the right to dwelling or a resident with the family of its father, if such father be married. It shall inherit from its natural parents and from their kindred heir, lineal and collateral, in the same manner as children born in wedlock. This section shall apply to cases where the natural father of such child is married to one other than the mother of said child, as well as where he is single” (Section 273, Revised Code Arizona 1928).
