6 Birth certificates of adopted people

Introduction

  1. 6.1 Birth certificates are important documents.1 As one submission stated:

As well as a record of the child’s origins, they are a legal document essential to a variety of legal transactions; from obtaining a passport or visa to other processes that require proof of identity.2

  1. 6.2 When a child is adopted, a new birth certificate is issued. It shows the child’s date of birth, states the child’s new name and identifies the people who adopted them as the child’s parents. The name the child was given at birth and the parents to whom the child was born are not mentioned. The amended certificate makes it appear that the child was born to the people who adopted them.
  2. 6.3 Amended birth certificates have always been part of Victoria’s adoption law.3 The system was established in 1928 to ‘cover up … the fact of an adoption’.4
  3. 6.4 Amended birth certificates do not represent the facts of an adopted person’s birth or reflect the reality that adopted people ‘have two sets of parents’ and ‘two sets of family backgrounds’.5 At the same time, the documents are consistent with the legal effect of adoption: the adoptive parents become the child’s legal parents and the law treats the child ‘as if the child had been born’ to them.6
  4. 6.5 For many people affected by past closed and forced adoptions, the amended birth certificate symbolises the serious problems they see with adoption.7 Their birth certificates represent erasure of their past and fabrication of their birth; a re-writing of their identity;8 and dishonesty and injustice which must be corrected.9 The Commission was told ‘adult adoptees have to live with [this] on a day to day basis’.10
  5. 6.6 The Commission was asked to make recommendations about ‘the way a child’s identity is reflected on [their] birth certificate’ to ‘better reflect community attitudes and contemporary law in relation to family’.11 The issue was raised in over 70 per cent of submissions and discussed in over 60 per cent of consultations.
  6. 6.7 Most people said the law must change, to ensure birth certificates reflect ‘the truth’ of an adopted child’s identity. However, views differed on which ‘truth’ the birth certificate should reflect and, therefore, on how the child’s identity should be reflected. Two main suggestions were put forward. One was that adoption should never change a child’s birth certificate. The other was that ‘integrated’ birth certificates, which show details of a child’s birth and adoption, should be introduced. In 2012, the Senate Community Affairs References Committee report, Inquiry into Commonwealth Contribution to Former Forced Adoption Policies and Practices, recommended that:

all jurisdictions adopt integrated birth certificates, that these be issued to eligible people upon request, and that they be legal proof of identity of equal status to other birth certificates.12

  1. 6.8 The Commission considered whether and how Victorian law can meet the desire in the community for change. It examined all suggestions and arguments raised in consultations and submissions.
  2. 6.9 The ‘best interests of the child’ was the guiding principle. Natural parents and adoptive parents’ interests were considered. The Commission reviewed laws in other states and territories and children’s rights under the United Nations Convention on the Rights of the Child, and considered the work of other reviews.13 It examined a fundamental question ‘What is a birth certificate for?’ Ensuring the recommendation was consistent with the legal effect of adoption and compatible with laws across Australia was a key consideration. It needed to be practical, given the many everyday uses birth certificates have,14 and to avoid security risks.
  3. 6.10 The Commission concluded that reform should occur, and that only one option is viable. It recommends that, subject to security and cost considerations, integrated birth certificates should be available to all children who are adopted, and all people who have been adopted, in Victoria. It sees no legal reason why integrated certificates should not have the same legal status as other birth certificates. However, there are practical matters which may affect whether it is feasible to use integrated birth certificates as valid identity documents. These matters could not be resolved in this review and should be examined by the Victorian Government. In the meantime, ‘commemorative’ integrated birth certificates should be made available.
  4. 6.11 The Commission acknowledges that not everyone will be happy with this recommendation. In particular, people affected by past forced adoptions who want their original birth certificate ‘restored’, will be disappointed. The Commission investigated this option but concluded that it is not viable. The Commission’s reasoning is set out in this chapter.

Current law and practice

  1. 6.12 Each state and territory issues birth certificates.15 In Victoria, they are are issued by the Registry of Births, Deaths and Marriages (BDM). The main legislation relating to birth certificates is the Births, Deaths and Marriages Registration Act 1996 (Vic) (BDMR Act).
  2. 6.13 The Registrar of BDM registers all births in Victoria.16 To register a child’s birth, the parents submit a ‘birth registration statement’ which contains details, called ‘particulars’, about the birth.17 The Registrar enters these particulars in the BDM Register.18 The birth certificate is a document that certifies ‘particulars in an entry’ in the BDM Register.19 It shows:
  • a person’s current name, name at birth, sex, and date and place of birth
  • their parents’ family names, occupations, ages and place of birth
  • information about the parents’ relationship and any previous children of the relationship.
  1. 6.14 The document has legal status. It can be presented to the world as an official and correct record and admitted in court as evidence of the facts stated in the document.20
  2. 6.15 Children who are adopted have two birth certificates. Their births are registered like everyone else’s under the BDMR Act. A birth certificate certifying the particulars of the birth is issued, on application to BDM. This must be included in the application for the adoption order.21 When the adoption order is made, the Adoption Act 1984 (Vic) requires steps to be taken which result in the replacement of the original birth certificate with an amended one.
  3. 6.16 The court sends a record of the adoption (a ‘memorandum of an adoption order’) to the Registrar of BDM.22 The particulars in this form parallel those included in the ‘birth registration statement’ submitted when a child is born.23 The Registrar of BDM registers the court record and enters the particulars in the BDM Register, including:
  • the child’s date and place of birth
  • the child’s name under the adoption order
  • the adoptive parents’ given and family names, ages when the child was born and usual occupations
  • the date and place of the adoptive parents’ marriage or registered relationship (if applicable)
  • the names of any children of the adoptive parents, and their ages when the adopted child was born.24
  1. 6.17 This information parallels the information that is entered in the BDM Register when a child’s birth is registered.25 The new entry supersedes the original birth registration and becomes the current record of the child’s birth. It provides the information that goes onto the child’s new birth certificate, which certifies the particulars in the entry.26 The new certificate looks no different from any other person’s birth certificate. It reflects the child’s new, post-adoption identity and is silent about the identity with which they were born.
  2. 6.18 Some adoptive mothers told the Commission about their reactions when they saw their children’s new birth certificates. One was ‘shocked’ that it was ‘backdated’ and that she and her husband were listed as her son’s parents.27 Another mother ‘found [the new birth certificate] quite unsettling’:

It felt to me like it had erased his past, including all evidence of his parents, and had replaced them with a fabrication. It labelled me as his mother and specified that the ‘age of the mother’ was 38. I was 38 when he was born, but I was not 38 when I became his mother.28

  1. 6.19 The new birth certificate replaces the original birth certificate, which is no longer legally valid and cannot be used as proof of identity. The original birth registration entry is marked with the word ‘adopted’.29 This closes the entry.30 The Registrar must not ‘issue an extract from, or copy of the entry’ except where permitted by the Adoption Act or the court.31 An adopted person can obtain a copy of the original birth certificate when they turn 18.32
  2. 6.20 Only the amended birth certificate can be used for identification purposes. The Commission heard from people adopted before 1984 whose original birth certificates were stamped ‘CANCELLED’.33 One person told the Commission he was ‘dismayed’ and ‘offended’ by ‘the way in which [his] original birth certificate had been invalidated’.34

Previous adoption reviews

  1. 6.21 Previous adoption reviews in Australia recommended the introduction of integrated birth certificates.
  2. 6.22 In 1986, a South Australian review recommended that ‘Official documentation relating to the identities of children’ should reflect both their birth and their adoption:35

a legal document which purports to contain a true and correct record of the circumstances of the birth of a child should indeed be true and correct.

  1. 6.23 A 1991 review in Western Australia recommended ‘the use of one full birth certificate … which records details of both birth and adoptive parents’.36 In 1997, New South Wales Law Reform Commission stated ‘it is unsatisfactory for a document to portray that a child was born to two people when this is in fact not true’37 and recommended that adopted people have the option of an integrated birth certificate. It concluded this was ‘the only practicable solution to an unsatisfactory system’.38
  2. 6.24 Forms of integrated birth certificates are available in South Australia, Western Australia and New South Wales, based on these recommendations.39
  3. 6.25 Further changes were enacted in South Australia in 2016, following a recommendation of a 2015 review that an adopted person’s birth certificate ‘reflect the “truest possible” account’ of a child’s birth history.40 The new arrangements:

will enable the Registrar of Births, Deaths and Marriages to register an adopted child’s birth to reflect the ‘truest possible’ account of their biological parentage and at the same time ensure any certificates produced make clear who is the child’s legal parent.41

  1. 6.26 Integrated birth certificates will be available to people adopted in the past in South Australia. In the Second Reading Speech to Parliament, the Minister noted ‘this is in line with’ the Senate Committee recommendation.42
  2. 6.27 The Victorian Government responded to the Senate Committee’s recommendation in 2012 with ‘support for the development of an integrated birth certificate in conjunction with national reforms relating to documentation and provisions of birth and adoption records’.43 Some people told the Commission they were disappointed the recommendation has not been implemented. One person asked the Commission to ‘address this injustice’ and keep ‘the politicians to their pledge to adoptees’.44 Thomas Graham urged the Commission:

to investigate further and find a solution where integrated birth certificate[s] serve as an official form of identification AND a record and acknowledgment of [a] person’s biological heritage so that they don’t have to live the lie that they are born to someone else when this is not the case. Living with a fractured identity is a burden adopted people shouldn’t have to bear, as seldom, if ever, have they consented to this name or identity change.45

Responses

  1. 6.28 While a range of people and groups commented on birth certificates, the views that matter most are those of people who were adopted.46
  2. 6.29 Sixteen adopted people and three groups representing adopted people spoke about birth certificates.47 All participants were born and adopted before 1984. Some were affected by closed and forced adoptions.
  3. 6.30 One person submitted the current system must continue, due to legal reasons relating to inheritance.48 Another person said he was comfortable with his birth certificate:

It doesn’t change me. I am who I am. My family is my family.49

  1. 6.31 Everybody else wanted change. A strong theme in their views was that birth certificates must be ‘truthful’:50

A true and honest birth certificate should be available to everyone.51

Truth is core to adoptees.52

Birth certificates need to reflect the honesty of what adoption is. Birth certificates should be honest.53

The adoptive parents were not at the birth … The birth certificate should be accurate.54

A birth certificate should be just that.55

  1. 6.32 Participants who were not adopted expressed similar views.56 An adoptive mother said:

It is important that there be a document which reflects the truth of a child’s birth and therefore identifies his/her birth parents …57

  1. 6.33 Among the people who were adopted, there were two views about how the truth should be reflected on the birth certificate. Most supported integrated birth certificates.58 Others argued that a child’s birth certificate should never be altered; the original should be used throughout the person’s life.59 Some proposed that these options should apply differently to children adopted in future and to people who have been adopted.
  2. 6.34 VANISH submitted that integrated birth certificates should be available to people affected by past adoptions and that ‘original unaltered birth certificates’ should be maintained in all future adoptions.60 It said there is ‘substantial agreement in the adoption community’ about the second point.
  3. 6.35 A person adopted in the 1960s proposed that integrated birth certificates should be available to people adopted in the past and mandatory for future adoptions.61 Another person adopted in the 1960s told the Commission integrated birth certificates are ‘fundamental to restoring the rights and dignity of people who have been adopted’.62
  4. 6.36 Other people affected by past adoptions wanted their original birth certificate restored as valid identity documents, because they do not identify with their adoptions.63 One submission explained:

I identify as the person I was when I was born, with the ancestry I had when I was born. As an adopted person, I am prevented legally from using my true birth certificate because of an arrangement for my care as a minor which I did not give consent to as an adult.64

  1. 6.37 A submission by Adoption Origins Victoria (AOV) included statements from 37 people affected by past adoptions who want to use their original birth certificate. It argued for use of original birth certificates by all children adopted in future, as well as people adopted in the past.65 AOV submitted that adoptive parents ‘have no right to be on the adopted child’s birth certificate’.66 Instead, they should use a certificate of adoption, issued by the court when the adoption order is made,67 as proof of their parental responsibility.68
  2. 6.38 The Australian Adoptee Rights Action Group, ARMS (Vic), Berry Street and Dr Briony Horsfall made similar suggestions.69 Two mothers whose children were adopted and one mother who adopted a child said birth certificates should never be amended.70
  3. 6.39 AOV did not oppose integrated birth certificates being available to people affected by past adoptions.71 However, it stated that they should not have legal status as a primary form of identification.72 AOV opposed integrated birth certificates for future adoptions as they would not ‘resolve the issue of true identity for future adoptees’.73
  4. 6.40 Identity was a central theme in arguments for both original and integrated certificates.74 Penny Mackieson was adopted in Victoria in 1963 and argues that integrated birth certificates should be implemented. She writes in her book Adoption Deception:

I question the point of having an identity document that does not accurately reflect one’s identity. I feel no shame for having been adopted, so why should I have to continue the charade of invisibility regarding my family origins?75

  1. 6.41 A number of organisations expressed support for integrated birth certificates.76 Some adoptive parents stated natural parents should be recognised on birth certificates, while others were not opposed to it, to reflect the reality of the child’s situation.77 Grandparents Victoria supported both options proposed by adopted people, as either would ensure a child would know their biological origins.78
  2. 6.42 A common theme in submissions and consultations was that adopted people should not be required to reveal they were adopted whenever they have to present their birth certificate.79 Many people said disclosure of this private information is an individual choice.80 One person adopted in the 1970s told the Commission:

It’s something everybody close to me knows but it’s not as if I’d go into a job interview and say, “Hi … I’m adopted”… It’s not anybody else’s business.81

  1. 6.43 Adopt Change reported feedback from its community that adopted people’s birth certificates should look no different from other people’s birth certificates, ‘to avoid unwanted disclosure’.82 Others expressed this view.83 An adoptive mother submitted that all birth certificates should be the same, so a person is not ‘labelled’ as adopted.84 A youth leader in the Project Bounce program made this point.85 Barnardos Australia told the Commission that many children it has placed for adoption ‘are comfortable with the existing situation’ and want ‘to be “normal” i.e. not have officials have information on their background unnecessarily’.86
  2. 6.44 Some participants thought the current system should continue.87 An adoptive mother with three children conveyed the children’s views that they do not want their families of origin listed on their birth certificates, because this would single them out as ‘different’.88 She reported that one of her children considered that how they joined their family is not anyone else’s business. Another of her children thought a child should be able to have both families recorded on the birth certificate if that is what they wanted, but it should not be mandatory.
  3. 6.45 Adoption Origins Victoria and ARMS (Vic) objected to integrated birth certificates because they would single out adopted people.89 An adopted person submitted that integrated certificates should be optional, because, while they ‘would be of great psychological benefit [for some] and allow them to integrate their identities’, other people would not want to share their personal information:

 

Every time you used your birth certificate you would need to explain why there are two sets of names [and] which one relates to your current identity …90

  1. 6.46 Others submitted that a person might not want to produce all of the information on an integrated birth certificate every time ‘identification is required’.91 VANISH proposed that a separate ‘legal identity document that provides an extract of [a person’s] identifying details’ should be available for ‘routine identification purposes’.92
  2. 6.47 Other people proposed that adopted people have separate documents for public purposes and personal use.93 Some proposed a two-sided document, with details about the birth on one side and the adoption on the other, would allow a person to control disclosure of information and ‘their own identity’.94
  3. 6.48 The Victorian Gay and Lesbian Rights Lobby (VGLRL) submitted that the birth certificates issued to donor-conceived people provide a model which protects people’s privacy and ensures they know their biological origins.95 Adopt Change also supported this option.
  4. 6.49 These birth certificates are indistinguishable from other birth certificates but include an ‘addendum’ (extra page) stating that ‘further information’ about the person’s birth is available.96 This is intended to encourage parents to be open with their children about the child’s origins.97 The Registrar must not issue the addendum to any person other than the person conceived by a donor treatment procedure named in the entry.98
  5. 6.50 Some people submitted that adopted people should have options regarding what is recorded on their birth certificates. Permanent Care and Adoptive Families proposed that individuals could choose between an integrated birth certificate or amended birth certificate, with the option of a separate document showing ‘family of origin details’.99 Berry Street submitted original birth certificates should be maintained but proposed adopted people aged 12 years or older could have the choice of an integrated birth certificate.100 Barnardos observed that a person’s ‘feelings about [their] birth certificates may change over the course of their life’ and proposed that ‘older age children’ could have ‘a range of options’ regarding what is recorded on their birth certificates.
  6. 6.51 Many adoptive parents said adopted people should be able to choose how their identity is reflected on their birth certificate and whether they disclose they were adopted.101 One mother stated it is ‘difficult to create a blanket rule’ because the ‘differing views’ about birth certificates ‘are all really valid points’.102 Another mother submitted:

I believe that the power to decide what information is on an adopted person’s birth certificate should reside solely with the adopted person and their right to privacy should be respected.

… While he is a treasured part of our family and he is my son and I am his mother, he has another mother who is as important, and he is another mother’s son. It bothers me that this is not reflected anywhere on his birth certificate. At the same time, this is his

story, not mine, and I don’t want his private story becoming the business of any clerk who needs to see his birth certificate.103

Options: analysis

  1. 6.52 Thirteen different options were proposed to the Commission:
  2. 1) A child’s birth certificate should never change on adoption. People who are adopted should continue to use their original birth certificate and their adoptive parents should use an adoption or parenting certificate to establish their legal parentage.
  3. 2) People affected by past forced adoption practices should be able to have their original birth certificate restored as a valid identity document without having to go to court to have their adoption discharged.
  4. 3) Integrated birth certificates with equal legal status to regular birth certificates should be available to people affected by past forced adoption practices.
  5. 4) Integrated birth certificates with non-legal status should be available to people affected by past forced adoption practices.
  6. 5) Integrated birth certificates with equal legal status to regular birth certificates should be issued in all future adoptions.
  7. 6) Integrated birth certificates with equal legal status to regular birth certificates should be optional for all people who have been adopted and are adopted in future.
  8. 7) Integrated birth certificates with non-legal status should be available to all people who have been adopted and are adopted in future.
  9. 8) Adopted people could have an integrated birth certificate for personal use and an abridged document for public uses.
  10. 9) Adopted people could have a two-sided document, showing details of their birth and adoption on different sides.
  11. 10) The system used for donor-conceived people should be used. Amended birth certificates should be used with an addendum alerting the person that there is further information about their birth.
  12. 11) Adopted people should be able to choose between an integrated birth certificate and an amended birth certificate with an optional separate document showing details of the family of origin.
  13. 12) Original birth certificates should be maintained in all future adoptions but children aged 12 years or older could choose to have an integrated birth certificate.
  14. 13) There should be no change to the current system of issuing amended birth certificates.
  15. 6.53 The issue came down to whose names should appear on a birth certificate:
  • only the parents to whom the child was born
  • only the parents who adopted the child
  • both groups of parents.
  1. 6.54 The relevant considerations were:
  • the best interests of the child
  • the purpose of a birth certificate
  • practical issues raised with the Commission.
  1. 6.55 Each consideration is discussed below.

The best interests of the child

  1. 6.56 When the Adoption of Children Act 1928 (Vic) introduced amended birth certificates, adoptive parents’ interests were dominant. It was thought that children should be protected from the ‘unfortunate stigma of illegitimacy’.104 The 1928 Act enabled a ‘fresh entry’ of a child’s birth to be made and stated ‘the adopters shall be designated father and mother respectively’,105 and made ‘evidence of adoption free from disclosure’.106
  2. 6.57 Reviews in recent decades recommended changes to birth certificates to reflect modern understanding of adoption and children’s best interests.
  3. 6.58 The 1986 South Australian review recommended an integrated certificate107 based on:

the principles of a modern adoption service, which place the child’s interests as paramount, and which focus on openness and honesty in adoption practices.108

  1. 6.59 The review found ‘the misleading practice of issuing a new birth certificate’ did not serve ‘the needs of the child’.109
  2. 6.60 The 1991 Western Australian review recommended that adopted people have one integrated certificate to maintain a child’s connection with their family of origin and based on the principle that children should know the truth about their origins.110
  3. 6.61 A 2015 South Australian review reported that people have experienced identity confusion, anguish and ‘pain’ due to their birth certificates.111 People affected by past forced and closed adoptions told the Senate Committee that ‘the truthful recording of a birth was fundamental to a person’s identity’.112 Penny Mackieson—who knew she was adopted and had a happy upbringing—recently wrote that the identity ‘fragmentation’ that adopted people experience:

is a lifelong challenge, including a source of re-traumatisation every time they are required to produce their state-falsified birth certificate as proof of identity.113

The best interests of the child: responses

  1. 6.62 The Commission was told that in the past, amended birth certificates have enabled the truth about adopted children’s origins and identity to be hidden from them.114 ARMS (Vic) said there should be no secrecy and ‘it is important to eliminate the element of shame’.115 VANISH and AOV submitted that amended birth certificates have no place in open adoption.116
  2. 6.63 A participant at a roundtable with agencies representing culturally and linguistically diverse communities noted:

Secrecy is a problem for a child when they have no connections back to their home or country of origin—changing a person’s birth certificate and erasing their past causes real belonging and identity issues for some children. This can have long-term issues …117

  1. 6.64 Some submissions referred to children’s rights to know their parents and to preservation of their identity under articles 7 and 8 of the United Nations Convention on the Rights of the Child (CRC).118 Article 7 states that every child ‘shall be registered immediately after birth’ and has ‘as far as possible, the right to know … his or her parents’.119 Article 8 states that every child has the right ‘to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference’.120
  2. 6.65 AOV submitted that the Adoption Act breaches articles 7 and 8.121 Dr Briony Horsfall submitted that original birth certificates ‘should be maintained’ as this ‘would be consistent with’ articles 7 and 8 and ‘the right to universal birth registration in Australia’.122
  3. 6.66 Grandparents Victoria saw birth certificates as ‘safeguards’ to secure children’s entitlement ‘to the truth about their birth’ and to ‘protect a child’s identity’.123 Others said birth certificates should provide knowledge about, and official acknowledgement of, children’s origins.124 Some youth leaders in the Project Bounce program thought it was important that natural parents are named on birth certificates because it ‘makes it easier to locate and contact them’ and omitting the information can cause ‘loss of identity’.125
  4. 6.67 Many regarded birth certificates as integral to a person’s identity.126 AOV submitted that amended birth certificates perpetrate ‘a profound denial of a child’s identity’.127 It stated integrated birth certificates do ‘not go far enough to respect the adoptee’s right to his or her true identity’.128 Berry Street’s general view was that a ‘child’s birth certificate is their identity document’ and ‘should not be altered’.129
  5. 6.68 Berry Street recognised that adoptive parents need ‘legal documentation that makes clear that they have full parental responsibility for a child’.130 It submitted:

Permanent carers are provided with specific documentation to fulfil this need without the amendment of the birth certificate of the child or children in their care. Berry Street suggests that adoptive parents be provided with a similar form of documentation.131

  1. 6.69 Children’s birth certificates do not change when permanent care orders are made under the Children, Youth and Families Act 2005 (Vic) (the CYF Act).132 The natural parents remain on the birth certificate, and remain the child’s parents, but the permanent care parents have full parental responsibility ‘to the exclusion of’ every other person, including the child’s parents.133 Permanent care parents must use the permanent care order to demonstrate their legal responsibility for the child. As Dan Barron, a permanent care parent of two children, explained:

We have to show [the permanent care order] in all our dealings with government departments etc to prove our link to our child.134

  1. 6.70 Mr Barron informed the Commission that confusion about who has legal responsibility for his two children arises because he and his wife are not named on their children’s birth certificates:

I would hate for adoptive parents to be placed in the position we find ourselves in as permanent care parents, where we find, especially when dealing with Federal departments, that there is misunderstanding as to who has the legal authority to sign which form, or who is liable for which payment, or who is eligible for which benefit.

  1. 6.71 Mr Barron explained that obtaining a passport for the children is ‘highly problematic’ and ‘school will only complete all official documentation in whatever name is on the birth certificate’. He said the difficulties he and his wife encounter are common among permanent care parents and work against his children’s best interests. He submitted that ‘a more honest birth certificate for adopted people is clearly warranted’ but this should not create confusion about ‘who is the legal parent’:

In my opinion what is in the best interests of the child is that whoever is looking after that child on a permanent basis, whether they be adoptive or permanent care parents, should be recognised as legal parents, in order that they can provide the best possible childhood for them.

This is not to deny birth family or biological heritage for one minute. My name is not on my sons’ birth certificate, and this is not a problem in itself for him. What is a problem for us both, is that the document that does link me to him (the PCO) does not recognise me as his legal parent, Australia-wide.135

  1. 6.72 While the Commission’s review did not include the issues permanent care families face, this information was relevant.

The best interests of the child: Commission’s conclusions

  1. 6.73 The Commission’s assessment of children’s best interests supports introduction of optional integrated birth certificates and retention of amended birth certificates.
  2. 6.74 Adopted people’s birth certificates should be consistent with modern, open adoption to the extent legally and practically possible. Naming natural parents on birth certificates would support children’s rights to know their origins,136 is likely to encourage openness within the adoptive family and may encourage ongoing relationships with natural parents.137 The New South Wales Law Reform Commission noted in 1997 that the information on the birth certificates of adopted people ‘has become a central issue in promoting openness in adoption’.138
  3. 6.75 Allowing children to have their identities as adopted people and the reality of their family relationships reflected on their birth certificates is in their best interests.139 However, this should not be forced on people.
  4. 6.76 While some adopted people do and will want a birth certificate which expresses the truth of their birth and adoption, others will not want to disclose they were adopted when using their birth certificate for everyday purposes. Some people would prefer to have a birth certificate which looks no different from anyone else’s. This option should remain available. The 1991 Western Australian review recognised this and recommended that:

a certified copy of the Registration of Birth which does not include reference to birth parents or adoptive status, be available to the adoptee and/or adoptive parents on request for use as required.140

  1. 6.77 Being adopted is nothing to feel ashamed of or keep secret. At the same time, adoption is a private matter. People generally should be entitled to disclose their private information when and how they choose.141 Allowing a child to decide if, when and how they disclose they were adopted is in their best interests. Requiring a child to disclose this personal information every time they present their birth certificate is not in their best interests.
  2. 6.78 This means integrated birth certificates should not be mandatory. Maintaining original birth certificates and requiring adoptive parents to use an adoption or parenting certificate or adoption order to establish their parental responsibility, would immediately disclose that the child was adopted. Children’s ability to control their private information would be taken away.
  3. 6.79 It must also be clear who a child’s legal parents are.142 Ensuring legal parents—and therefore adoptive parents—are clearly recognised as such is in children’s best interests.143
  4. 6.80 Confusion about parents’ legal status is not in children’s best interests. It is likely that adoptive parents would face similar problems to permanent care parents if they were not named on their children’s birth certificates. Making adoptive parents’ role difficult would ultimately disadvantage their children.144 This would be inconsistent with article 2 of the CRC which states children should not be discriminated against based on their parents’ ‘status’.145
  5. 6.81 Articles 7 and 8 provide limited guidance about how a child’s identity should be reflected on their birth certificate.146 They impose obligations on governments to:
  • reflect ‘the true nature of a child’s family relations’ in birth registrations147
  • provide ‘children with access to information about their biological parents’148
  • create and preserve records ‘establishing a child’s identity’, including ‘information about the identity of a child’s parents—gestational, genetic and social’.149
  1. 6.82 In a general sense, the right to birth registration in article 7 supports integrated birth certificates:

The effective enjoyment of a child’s right to birth registration requires that the law recognise and reflect the actual nature of a child’s family environment and include information about the identity of those persons who have accepted parental responsibility for the child.150

  1. 6.83 The birth certificates of donor-conceived people, which include an extra page stating further information is available, do not provide a suitable option. While the extra page is intended to encourage openness about children’s origins, and people’s privacy is respected, a person’s identity is not reflected on the birth certificate any differently. This model does not satisfy the needs of adopted people who want the reality of their identity reflected on their birth certificates.

The purpose of a birth certificate

  1. 6.84 The purpose of a birth certificate was a fundamental question in the review. Views differ.151 Penny Mackieson recently noted:

Birth certificates are used for a number of purposes and there appears to be a lack of common agreement, also of satisfaction, in relation to this.152

  1. 6.85 The 2015 review of adoption law in South Australia described birth certificates as ‘foundational’ documents establishing ‘a person’s biological and familial beginnings’.153
  2. 6.86 A recent article in the Victoria University Law and Justice Journal observed that birth certificates ‘benefit the individual, both practically and psychologically’.154 As well as providing proof of identity, birth certificates may ‘shape [a] person’s sense of identity’.155 By providing official recognition of a person’s family, birth certificates may affect a person’s perception of how they and their family ‘are viewed by the government’ and accepted by the community.156
  3. 6.87 In this Commission’s 2007 report on Assisted Reproductive Technology (ART) and adoption, the Commission acknowledged that birth certificates ‘have symbolic value for many people’ but considered that this ‘is not their primary purpose’.157 It stated birth certificates are primarily ‘documents with legal consequences’.158 As discussed above, a birth certificate is admissible in legal proceedings as evidence of the facts recorded in it.159 Under the Status of Children Act 1974 (Vic), birth certificates issued in Victoria provide ‘prima facie’ proof that the people named as a child’s parents in the certificate are the child’s parents.160 Similar laws exist across Australia.161
  4. 6.88 The Commission concluded sperm donors should not be included on birth certificates due to birth certificates’ legal functions:

Only those people who are recognised as the legal parents of the child should be named on the birth certificate.162

The purpose of a birth certificate: responses

  1. 6.89 The question ‘What is the purpose of a birth certificate’ arose in consultations.163 Various alternatives were posed:

Is it to accurately record the facts of one’s parentage and birth; to legally recognise the parenting arrangements for the child; and/or to provide a legal identity document for the person born?164

Is it a document that demonstrates our history and identity, or is it just a document we use for identification (legal, administrative) purposes? Or both?165

  1. 6.90 A common theme in submissions and consultations was that a birth certificate should be a true record of a person’s birth and, therefore, show a child’s biological origins.166 VANISH asked:

what is the purpose of a birth certificate if it does not accurately reflect the details of one’s biological/genetic heritage and birth?167

  1. 6.91 It submitted that a birth certificate’s ‘primary purpose’ should be

to provide an accurate and comprehensive record of the facts of a person’s genetic and/or biological parentage and birth.168

  1. 6.92 Adoption Origins Victoria stated:

Birth certificates are certificates of heritage and bloodlines. They are not ‘parenting certificates’.169

  1. 6.93 Some people told the Commission that a wider review of the question is needed, because similar issues arise in ART and surrogacy.170 Participants in a consultation with Rainbow Families Council and the VGLRL told the Commission that birth certificates do not reflect the reality of many children in LGBTI families. Recent academic literature discusses these issues.171 The Commission’s review was limited to how adopted people’s identities should be reflected on their birth certificates.

The purpose of a birth certificate: Commission’s conclusions

  1. 6.94 The Commission’s research found that, across Australia, the primary purposes of birth certificates are legal.172 Birth certificates have two main purposes.
  2. 6.95 First, birth certificates establish a person’s legal identity.173 They are official ‘identity documents’. In its 1997 adoption review, the New South Wales Law Reform Commission stated:

Increasingly in our society, a birth certificate is required to be produced to prove one’s legal identity. ‘Birth certificate’ has perhaps even become a misnomer as its use as an identity document overtakes its role as a record of birth information. Accordingly, one of the principal roles of the Registry of Births, Deaths and Marriages is to issue a document, on which interested parties can rely, which certifies a person’s legal identity.174

  1. 6.96 A birth certificate must show a person’s ‘true and correct legal identity’.175 In adoption, a child’s legal identity changes when an adoption order is made (whether or not the child’s name changes). The order ends the legal relationship between a child and their parents and creates a new legal relationship between the child and their adoptive parents. The child’s new legal identity must be reflected on their birth certificate. Maintaining the child’s original birth certificate is not viable ‘as this would not certify to the world at large his or her true and current legal identity’.176
  2. 6.97 Secondly, birth certificates show who a child’s legal parents are.177 In Victoria and across Australia, people named on birth certificates are presumed to be a child’s parents.178 A person named as a parent in a register of births is presumed to be a child’s parent under the federal Child Support (Assessment) Act 1989 (Cth),179Australian Passports Act 2005 (Cth)180 and the Family Law Act 1975 (Cth).181 A child’s birth certificate must be compatible with these laws to avoid legal complications. Naming only natural parents, who are not legal parents, could create legal problems.182
  3. 6.98 Very often, a child’s natural parents and legal parents are the same people.183 In adoption, they are not. Before an adoption order, the natural parents are the child’s legal parents. The adoption order transfers parentage to the adoptive parents. The adoptive parents become the child’s legal parents.
  4. 6.99 This distinction is reflected in the naming of parents on the child’s birth certificate. The natural parents are named on the child’s birth certificate until the adoption order is made. After legal parentage changes, the adoptive parents appear on the birth certificate. While the birth certificate is misleading about the facts of the birth, it does not mislead about who the child’s legal parents are.
  5. 6.100 This occurs in other situations. Where a child is born through surrogacy, the surrogate mother and her partner (if she has one) are presumed to be the child’s legal parents and are responsible for registering the child’s birth.184 The intended parents (called the ‘commissioning parents’) may obtain a court order which has a similar effect to an adoption order: legal parentage transfers from the surrogate mother or couple to the intended parents.185 The child’s birth registration is amended in a similar way to when an adoption is registered and, as in adoption, an amended birth certificate is issued.186
  6. 6.101 In ART, the Status of Children Act gives people who were not involved in the birth the status of a parent and provides that people involved in the birth are not the child’s parents.187 If a woman gives birth from a donor’s sperm, her male partner is recognised as the child’s father and the donor is not.188 Similarly, if a woman in a same-sex relationship gives birth from a donor’s sperm, her partner is recognised as the child’s legal parent and the donor is presumed not to be the father.189
  7. 6.102 This determines who is named as the child’s parents in the BDM Register and, therefore, on the child’s birth certificate.190 The birth certificates of children born through ART and surrogacy include the names of people who were not involved in the child’s birth but are recognised by the law as the child’s parents.191
  8. 6.103 Birth certificates do not necessarily record a child’s biological heritage.192
  9. 6.104 Legal parents must be named on birth certificates. Adoptive parents must therefore be on their children’s birth certificates. Original birth certificates cannot be maintained because they do not show who a child’s legal parents are.
  10. 6.105 Integrated birth certificates would fulfil the purposes of a birth certificate, and would not cause legal problems, as long as a person’s legal identity is clear on the document and it is clear who a person’s legal parents are.

Practical issues raised with the Commission

  1. 6.106 Four practical issues were raised with the Commission regarding introduction of integrated birth certificates:
  • possible security risks
  • possible issues relating to the ‘Document Verification Service’
  • possible difficulties when dealing with agencies
  • cost.
  1. 6.107 In the Commission’s view, the primary issues are security and costs.

Possible security risks

  1. 6.108 A person must not be able to present two legal identities.193 The Senate Committee observed that ‘risks of security, fraud and identity theft’ could arise if a person had two ‘legally valid identity documents’.194 An adopted person could not use their original birth certificate, as well as their amended birth certificate, as valid proof of identity.195 Maintaining the original birth certificate and using the adoption certificate or another document to establish legal parentage would be problematic, because the two legal documents would show different legal identities.
  2. 6.109 The Senate Committee was satisfied that integrated birth certificates did not create the risks about which it was concerned. The New South Wales Law Reform Commission saw no reason why a person could not have, and be able to use, both the amended and integrated birth certificates, ‘as the adoptee’s legal identity [would be] apparent from either’.196
  3. 6.110 These conclusions seem correct. However, the Commission acknowledges that the Victorian Government is better placed to make assessments about possible security risks in the context of the National Identity Security Strategy.197
  4. 6.111 The Commission received helpful information from the Commonwealth Attorney-General’s Department about the Document Verification Service (DVS), which is a key part of that strategy.198

Possible issues with the Document Verification Service

  1. 6.112 The DVS is an online Commonwealth-run service which Commonwealth, state and territory agencies and private organisations use to verify the integrity of people’s identity documents, including birth certificates. Over 400 organisations use the DVS.199
  2. 6.113 The Commission was told the DVS might not be able to accommodate integrated birth certificates.200 The Commission sought clarification from the Commonwealth Attorney-General’s Department. It advised that while it may be technically possible to accommodate integrated certificates, it might require substantial and costly technical changes across the DVS and agencies using the system. It is not clear what technical changes, if any, would be necessary.201 The Victorian Government will need to explore this matter further.

Possible difficulties with other agencies

  1. 6.114 The Commission was told problems might arise if a person presented an integrated birth certificate to a government agency, because the different form of certificate could create confusion and agencies might refuse to accept it as proof of identity.202 No specific instances were reported to the Commission about these issues.203
  2. 6.115 The Commission discussed similar issues in 2007 when it considered whether donors should be named on the birth certificates of donor-conceived people:

To include information on the birth certificates that does not give rise to legal obligations and which does not assist in identifying a person for legal and administrative purposes would create confusion about a person’s legal status in respect of the child. This could lead to problems with organisations such as government agencies, schools and health providers. It is also likely that a birth certificate listing such information would not be accepted for official purposes both within Australia and internationally. It is likely that a birth certificate listing [information about a donor] would not be accepted for official purposes both within Australia and internationally.204

  1. 6.116 Victoria’s BDM told the Commission that the introduction of ‘commemorative’ (non-legal) integrated birth certificates would be possible under Victoria’s current legislative framework and that the introduction of integrated birth certificates with legal status would require legislative amendment.205 Commemorative certificates are not legal documents and cannot be used for identity purposes.206 BDM noted that the experiences of the jurisdictions which have introduced legal integrated birth certificates indicated that additional consultation and engagement with agencies which would need to rely on the certificates would be necessary to avoid confusion about the legal status of the document being used.207
  2. 6.117 The South Australian BDM provided information to the Commission about practice in South Australia (before changes were enacted in December 2016). It told the Commission adopted people may have a ‘post-adoption birth certificate’, integrated birth certificate or both. While both can be used as identity documents, people are advised to use the post-adoption birth certificate when applying to agencies (for example, for licences and passports), to avoid possible confusion. The Commission was told integrated birth certificates are not common and agencies sometimes reject them as identity documents.208
  3. 6.118 Recent amendments to South Australia’s adoption legislation:

enable the Registrar of Births, Deaths and Marriages to register an adopted child’s birth to reflect the ‘truest possible’ account of their biological parentage and at the same time ensure any certificates produced make clear who is the child’s legal parent.209

  1. 6.119 Information published by the South Australian Government indicates that integrated birth certificates are intended to be valid identity documents.210
  2. 6.120 The integrated birth certificates issued in Western Australia do not have equal legal status to regular birth certificates.211 The amended birth certificate is the legally valid birth certificate. It shows the adopted person’s ‘new identity’ and the ‘new parentage’. The Registrar of BDM (WA) told the Commission the integrated certificate is intended to be an ‘information source’, which provides a record of the adoption and can assist with tracing family members. The Registrar explained that BDM (WA) does not support using integrated birth certificates as official identity documents. It considers that they could cause confusion in the community, because the certificates show two identities.212 The Registrar told the Commission:

 

it is unlikely the integrated birth certificate would be accepted by the multitude of organisations which now require birth certificates for identity purposes given the two identities on the document, leading to additional frustration and anguish for adoptees.213

  1. 6.121 The situation in New South Wales is unclear. A 2014 review stated that New South Wales legislation is consistent with the Senate Committee’s recommendation on integrated birth certificates.214 However, it is not clear that an integrated certificate is ‘legal proof of identity of equal status to other birth certificates’. The New South Wales Registry of BDM stamps the integrated birth certificates ‘not for official use’,215 and states that the documents ‘cannot be used for identification purposes’.216
  2. 6.122 The Commission sought clarification from BDM (NSW) regarding the status of the integrated certificate. It was told the certificate has the same legal status as other birth certificates and can be accepted as proof of identity. The documents are stamped ‘not for official use’ because they contain information about the ‘pre-adoptive birth registration’, which is superseded by the ‘post-adoptive birth registration’ and ‘no longer active’. However, this does not prevent other agencies from accepting the document as ‘valid identification’ as it contains information from the ‘active’ post-adoptive birth registration. It is up to the agency whether to accept the document as proof of identity.217
  3. 6.123 The approaches in South Australia, Western Australia and New South Wales are not consistent. Integrated birth certificates cannot be used as identity documents in Western Australia. It is unclear whether they are accepted as identity documents in South Australia and New South Wales.
  4. 6.124 A nationally co-ordinated response to the question of the legal status of integrated birth certificates would be helpful. The Commission was told that the Senate Committee’s recommendation was discussed nationally during 2013 and 2014.218 However, it was unable to obtain clear information about the outcome of that work.

Cost

  1. 6.125 In addition to the costs of technical changes related to the DVS, referred to in [6.113], there may be substantial costs associated with implementing changes to ensure agencies across Australia and internationally are able to accept integrated birth certificates. This is a question for the Victorian Government to consider.

Practical issues: Commission’s conclusions

  1. 6.126 If an integrated birth certificate clearly shows a person’s legal identity, it should be able to have the same legal status as other birth certificates. It should be possible to design an integrated certificate which clearly distinguishes between a person’s legal post-adoption identity and birth identity. However, this is a matter for the Registrar of BDM to determine, in consultation with other agencies.
  2. 6.127 Potential administrative difficulties within Victorian agencies could be addressed by giving staff proper information and training. However, the Commission acknowledges it may not be practicable to prevent possible difficulties when people present integrated certificates to agencies outside Victoria, including overseas.
  3. 6.128 A complete assessment of the practical issues was not possible due to the lack of clear, reliable information. These issues will need to be considered by Government, and will require national consultation and co-ordination. The information the Commission received reinforces that people should have the option of using the amended certificate for situations where practical difficulties may arise.

Commission’s conclusions

  1. 6.129 While amended birth certificates naming only adoptive parents were introduced to conceal the truth about a child’s adoption, adoptive parents must continue to be named on adopted children’s birth certificates due to the legal purposes of modern birth certificates. The documents must reflect a person’s legal identity and who their legal parents are.
  2. 6.130 This means it is not viable to maintain and restore use of the original birth certificate. Legal and practical problems would arise if only a person’s natural parents were named on their birth certificate. The current system of issuing amended birth certificates should continue, for the reasons discussed in this chapter.
  3. 6.131 An adopted person should be able to obtain, if they wish, an integrated birth certificate which includes their natural parents’ names, reflecting the reality of their family relationships, history and identity. The Commission sees no legal reason why integrated birth certificates should not have equal legal status to other birth certificates, provided that they clearly show a person’s legal identity and legal parentage. The Government should examine the concerns raised by agencies about practical and security matters and determine whether it is feasible to use integrated certificates as valid identity documents.
  4. 6.132 In the meantime, commemorative integrated birth certificates should be available on application to BDM, to all people adopted in future and all people who have been adopted. In Chapter 16, the Commission recommends that:
  5. a) A child should be able to obtain a copy of their original birth certificate:
  • with their adoptive parents’ consent or
  • after a counsellor assesses the child as mature enough to receive information about the identity of their natural parents.
  1. b) Adoptive parents should be able to obtain a copy of their child’s original birth certificate on their behalf.
  2. 6.133 Integrated birth certificates should be available to adopted children on the same terms. Children who are mature enough to make an informed decision should be able to choose how their identity is reflected on their birth certificate.
  3. 6.134 The Commission proposes that adoptive parents’ access to the integrated birth certificate from BDM would be in accordance with the BDM Access Policy, which enables parents to have access to their child’s birth certificate, on the child’s behalf, where they are under 18.219
  4. 6.135 BDM should consult publicly and with relevant state and national agencies on the design of the integrated birth certificate.

Recommendations

  1. 24 Subject to security and cost implications, integrated birth certificates should be introduced in Victoria. These should:
  2. a. be available:
  3. i. for future adoptions and all previous adoptions
  4. ii. in addition to the amended birth certificate that is currently provided
  5. iii. on application to the Registrar of Births, Deaths and Marriages
  6. b. clearly show the person’s legal identity
  7. c. have the same legal status as the amended birth certificate.
  8. 25 Where an adopted child is under 18 years of age, their integrated birth certificate should be available, on application, to:
  9. a. their adoptive parents, on the child’s behalf
  10. b. to the child:
  11. i. with their adoptive parents’ consent or
  12. ii. after receiving counselling from a counsellor who assesses the child as mature enough to understand the consequences of receiving information about the identity of their natural parents. 

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