* N.Y.
OBC Tour 2 *
[Veto Jacket
1935, Int. 2458]
Cite this as: Message of the
Governor... (accessed MM/DD/YEAR)
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Headers and footers have ben 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
[3]
4
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.
5
“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
[13]
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
[15]
16
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.
18
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.
19
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:
ß
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 the
34
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.
ß 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.
ß 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.
ß
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.
ß
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.
ß
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
ß 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
ß 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.
ß
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.
ß
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.
ß
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
ß 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.
ß
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....
ß
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....
ß
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.
ß
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.
ß
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....
ß
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....
ß
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.
ß
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....
ß 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....
ß
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.
ß
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....”
“ß
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....”
“ß
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.”
“ß
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.”
“ß
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.”
“ß
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....”
“ß
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....”
“ß
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.”
“ß
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
61
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)).
63
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