N.Y. Public Health Law § 4138: Birth certificate; new certificate in case of subsequent marriage of unwed parents; adoption; adjudication of parentage; change of name o...

§ 4138. Birth certificate; new certificate in case of subsequent

marriage of unwed parents; adoption; adjudication of parentage; change

of name of registrant or parent; gender transition of registrant or

parent. 1. A new certificate of birth shall be made whenever:

(a) proof is submitted to the commissioner that the previously unwed

parents of a person have intermarried subsequent to the birth of such

person; or,

(b) notification is received by, or proper proof is submitted to, the

commissioner from or by the clerk of a court of competent jurisdiction

or the parents, or their attorneys, or the person himself, of a

judgment, order or decree relating to the parentage; or,

(c) notification is received by, or proper proof is submitted to, the

commissioner from or by the clerk as aforesaid of a judgment, order or

decree relating to the adoption of such person. Such judgment, order or

decree shall also be sufficient authority to make a new birth

certificate with conforming change in the name of such person on the

birth certificate of any of such person's children under the age of

eighteen years whose record of birth is on file in the state health

department; or,

(d) proper proof is submitted to the commissioner by the parents, or

their attorneys, or the person himself or his attorney, of a judgment,

order or decree relating to a change of name granted by a court of

competent jurisdiction. Such judgment, order or decree shall also be

sufficient authority to make a new birth certificate with conforming

change in surname for any of such person's children under the age of

eighteen years whose record of birth is on file in the state health

department; or,

(e) the certificate of birth of a child born out of wedlock as defined

in paragraph (b) of subdivision one of section four thousand one hundred

thirty-five of this article has been filed without entry of the name of

the signatory other than the person who gave birth and the commissioner

thereafter receives the acknowledgment of parentage pursuant to section

one hundred eleven-k of the social services law or section four thousand

one hundred thirty-five-b of this article executed by the person who

gave birth and the other signatory which authorizes the entry of the

name of such other signatory, and which may also authorize a conforming

change in the surname of the child; or

(f) any person born in New York state who submits an application to

change the gender on the birth certificate and an affidavit attesting

under penalty of perjury that the request for a change of gender to

(female, male, or X) is to conform the person's documents and records to

the person's gender identity and is not made for any fraudulent purpose.

A sex designation of X shall not be a required sex designation of any

individual. Upon receipt of the documentation, the commissioner shall

establish a new birth certificate reflecting the gender stated in the

application and any change in name, if accompanied by a court order for

a change of name. If such application is made on behalf of a person

younger than seventeen, such affidavit shall be signed by the person's

parent, legal guardian, mental health or medical provider, or social

services provider.

2. (a) On every new certificate of birth made pursuant to this

section, a notation that it is filed pursuant to section four thousand

one hundred thirty-eight of the public health law shall be entered

thereon. Notwithstanding other provisions of this article, when a child

is adopted by an unmarried man or woman, the new certificate shall, if

the adopting parent so requests, reflect the fact that it is a single

parent adoption.

(b) Notwithstanding other provisions of this article, when a petition

for adoption by two persons has been duly filed, and one of the

petitioners dies before the adoption is complete, such deceased

petitioner's name shall be included on the new certificate as a parent,

if such adoption is completed, unless otherwise requested by the other

petitioner.

(c) If the original certificate of birth contains fictitious names of

either or both parents, a new certificate shall not be prepared until

notification is received by, or proper proof is submitted to, the

commissioner by the clerk of a court of competent jurisdiction or the

parents or their attorney, or the person himself, or his attorney, of a

judgment, order or decree relating to parentage.

3. (a) When a new certificate of birth is made the commissioner shall

substitute such new certificate for the certificate of birth then on

file, if any, and shall send the registrar of the district in which the

birth occurred a copy of the new certificate of birth. The registrar

shall make a copy of the new certificate for the local record and hold

the contents of the original local record confidential along with all

papers and copies pertaining thereto. It shall not be released or

otherwise divulged except by order of a court of competent jurisdiction

or pursuant to section four thousand one hundred thirty-eight-e of this

title.

(b) Thereafter, when a verified transcript or certification of birth

of such person is issued by the registrar, it shall be based upon the

new certificate, except when an order of a court of competent

jurisdiction shall require the issuance of a verified transcript or

certification based upon the original local record of birth or

application is made pursuant to section four thousand one hundred

thirty-eight-e of this title.

4. The commissioner may make a microfilm or other suitable copy of the

original certificate of birth and all papers pertaining to the new

certificate of birth. In such event, the original certificate and papers

may be destroyed. All undestroyed certificates and papers and copies

thereof shall be confidential and the contents thereof shall not be

released or otherwise divulged except by order of a court of competent

jurisdiction or pursuant to section forty-one hundred thirty-eight-c,

forty-one hundred thirty-eight-d or forty-one hundred thirty-eight-e of

this title.

5. Thereafter, when a certified copy or certified transcript of the

certificate of birth of such a person, or a certification of birth for

such person is issued, it shall be based upon the new certificate of

birth, except when an order of a court of competent jurisdiction shall

require the issuance of a copy of the original certificate of birth or

application is made pursuant to section four thousand one hundred

thirty-eight-e of this title.

6. When the commissioner shall receive proper proof or notification

pursuant to paragraphs (a), (b), or (c) of subdivision one of this

section relating to a person born outside this state, such proof or

notification shall be forwarded to the appropriate registration

authority for the place of birth.

7. Whenever the commissioner makes a new birth certificate for any

person pursuant to the provisions of subdivision one of this section, he

shall forward to such person, if eighteen years of age or more, or to

the parents of such person, a certified copy, a certified transcript or

a certification of birth, whichever he deems appropriate under the

circumstances, without making any charge therefor.

8. An adopted person eighteen years of age or older, or the birth

parent or parents, may submit to the registrar a notice of change of

name and/or address and such information shall be attached to the

original birth certificate of the adopted person.