1     
BIRTH CERTIFICATE MODIFICATIONS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Daniel McCay

5     
House Sponsor: Brady Brammer

6     

7     LONG TITLE
8     General Description:
9          This bill enacts provisions regarding amending birth certificates.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the rulemaking authority of the Department of Health and Human Services
13     (department) regarding when an error or omission to a vital record may be
14     corrected;
15          ▸     allows the department to amend a birth certificate without a court order under
16     certain circumstances;
17          ▸     creates the procedure a court must follow to grant a petition to amend the sex
18     designation of a birth certificate;
19          ▸     requires the court to appoint a guardian ad litem before granting a petition to amend
20     the sex designation of a birth certificate;
21          ▸     requires the department to issue an amended birth certificate that does not identify
22     the fields that were amended; and
23          ▸     requires the department to issue an amendment history with a birth certificate.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          This bill provides a special effective date.
28          This bill provides a coordination clause.
29     Utah Code Sections Affected:
30     AMENDS:
31          26-2-2, as last amended by Laws of Utah 2022, Chapter 415
32          26-2-7, as last amended by Laws of Utah 2022, Chapter 231
33     REPEALS AND REENACTS:
34          26-2-11, as last amended by Laws of Utah 1995, Chapter 202
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 26-2-2 is amended to read:
38          26-2-2. Definitions.
39          As used in this chapter:
40          (1) "Adoption document" means an adoption-related document filed with the office, a
41     petition for adoption, a decree of adoption, an original birth certificate, or evidence submitted
42     in support of a supplementary birth certificate.
43          (2) "Biological sex at birth" means an individual's sex, as being male or female,
44     according to distinct reproductive roles as manifested by sex and reproductive organ anatomy,
45     chromosomal makeup, and endogenous hormone profiles.
46          [(2)] (3) "Certified nurse midwife" means an individual who:
47          (a) is licensed to practice as a certified nurse midwife under Title 58, Chapter 44a,
48     Nurse Midwife Practice Act; and
49          (b) has completed an education program regarding the completion of a certificate of
50     death developed by the department by rule made in accordance with Title 63G, Chapter 3, Utah
51     Administrative Rulemaking Act.
52          [(3)] (4) "Custodial funeral service director" means a funeral service director who:
53          (a) is employed by a licensed funeral establishment; and
54          (b) has custody of a dead body.
55          [(4)] (5) "Dead body" or "decedent" means a human body or parts of the human body
56     from the condition of which it reasonably may be concluded that death occurred.
57          [(5)] (6) "Dead fetus" means a product of human conception, other than those
58     circumstances described in Subsection 76-7-301(1):
59          (a) of 20 weeks' gestation or more, calculated from the date the last normal menstrual
60     period began to the date of delivery; and
61          (b) that was not born alive.
62          [(6)] (7) "Declarant father" means a male who claims to be the genetic father of a child,
63     and, along with the biological mother, signs a voluntary declaration of paternity to establish the
64     child's paternity.
65          [(7)] (8) "Dispositioner" means:
66          (a) a person designated in a written instrument, under Subsection 58-9-602(1), as
67     having the right and duty to control the disposition of the decedent, if the person voluntarily
68     acts as the dispositioner; or
69          (b) the next of kin of the decedent, if:
70          (i) (A) a person has not been designated as described in Subsection [(7)] (8)(a); or
71          (B) the person described in Subsection [(7)] (8)(a) is unable or unwilling to exercise
72     the right and duty described in Subsection [(7)] (8)(a); and
73          (ii) the next of kin voluntarily acts as the dispositioner.
74          [(8)] (9) "Fetal remains" means:
75          (a) an aborted fetus as that term is defined in Section 26-21-33; or
76          (b) a miscarried fetus as that term is defined in Section 26-21-34.
77          [(9)] (10) "File" means the submission of a completed certificate or other similar
78     document, record, or report as provided under this chapter for registration by the state registrar
79     or a local registrar.
80          [(10)] (11) "Funeral service director" means the same as that term is defined in Section
81     58-9-102.
82          [(11)] (12) "Health care facility" means the same as that term is defined in Section
83     26-21-2.
84          [(12)] (13) "Health care professional" means a physician, physician assistant, nurse
85     practitioner, or certified nurse midwife.
86          (14) "Intersex individual" means an individual who:
87          (a) is born with external biological sex characteristics that are irresolvably ambiguous;
88          (b) is born with 46, XX chromosomes with virilization;
89          (c) is born with 46, XY chromosomes with undervirilization;
90          (d) has both ovarian and testicular tissue; or
91          (e) has been diagnosed by a physician, based on genetic or biochemical testing, with
92     abnormal:
93          (i) sex chromosome structure;
94          (ii) sex steroid hormone production; or
95          (iii) sex steroid hormone action for a male or female.
96          [(13)] (15) "Licensed funeral establishment" means:
97          (a) if located in Utah, a funeral service establishment, as that term is defined in Section
98     58-9-102, that is licensed under Title 58, Chapter 9, Funeral Services Licensing Act; or
99          (b) if located in a state, district, or territory of the United States other than Utah, a
100     funeral service establishment that complies with the licensing laws of the jurisdiction where the
101     establishment is located.
102          [(14)] (16) "Live birth" means the birth of a child who shows evidence of life after the
103     child is entirely outside of the mother.
104          [(15)] (17) "Local registrar" means a person appointed under Subsection 26-2-3(3)(b).
105          [(16)] (18) "Nurse practitioner" means an individual who:
106          (a) is licensed to practice as an advanced practice registered nurse under Title 58,
107     Chapter 31b, Nurse Practice Act; and
108          (b) has completed an education program regarding the completion of a certificate of
109     death developed by the department by administrative rule made in accordance with Title 63G,
110     Chapter 3, Utah Administrative Rulemaking Act.
111          [(17)] (19) "Office" means the Office of Vital Records and Statistics within the
112     Department of Health, operating under Title 26, Chapter 2, Utah Vital Statistics Act.
113          [(18)] (20) "Physician" means a person licensed to practice as a physician or osteopath
114     in this state under Title 58, Chapter 67, Utah Medical Practice Act, or Title 58, Chapter 68,
115     Utah Osteopathic Medical Practice Act.
116          [(19)] (21) "Physician assistant" means an individual who:
117          (a) is licensed to practice as a physician assistant under Title 58, Chapter 70a, Utah
118     Physician Assistant Act; and
119          (b) has completed an education program regarding the completion of a certificate of
120     death developed by the department by administrative rule made in accordance with Title 63G,
121     Chapter 3, Utah Administrative Rulemaking Act.
122          [(20)] (22) "Presumed father" means the father of a child conceived or born during a
123     marriage as defined in Section 30-1-17.2.
124          [(21)] (23) "Registration" or "register" means acceptance by the local or state registrar
125     of a certificate and incorporation of the certificate into the permanent records of the state.
126          [(22)] (24) "State registrar" means the state registrar of vital records appointed under
127     Subsection 26-2-3(2)(e).
128          [(23)] (25) "Vital records" means:
129          (a) registered certificates or reports of birth, death, fetal death, marriage, divorce,
130     dissolution of marriage, or annulment;
131          (b) amendments to any of the registered certificates or reports described in Subsection
132     [(23)] (25)(a);
133          (c) an adoption document; and
134          (d) other similar documents.
135          [(24)] (26) "Vital statistics" means the data derived from registered certificates and
136     reports of birth, death, fetal death, induced termination of pregnancy, marriage, divorce,
137     dissolution of marriage, or annulment.
138          Section 2. Section 26-2-7 is amended to read:
139          26-2-7. Correction of errors or omissions in vital records -- Conflicting birth and
140     foundling certificates -- Administrative birth certificate amendment -- Rulemaking.
141               (1) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
142     Act, the department may make rules:
143          [(1)] (a) governing applications to correct alleged errors or omissions on any vital
144     record;
145          [(2)] (b) establishing procedures to resolve conflicting birth and foundling certificates;
146     [and]
147          [(3)] (c) allowing for the correction and reissuance of a vital record that was originally
148     created omitting a diacritical mark[.]; and
149          (d) notwithstanding any other provision of law, allowing for the change of a child's
150     name on the child's birth certificate within one year from the day the child is born.
151          (2) For a birth certificate, the department may correct an error or omission under
152     Subsection (1)(a) if:
153          (a) the error or omission is a result of a scrivener's error or a data entry error; and
154          (b) the department receives:
155          (i) (A) an affidavit from the applicant attesting that there is an error on the birth
156     certificate;
157          (B) supporting documentation from the health care facility or attending health care
158     provider; and
159          (C) an affidavit from the health care facility or health care provider described in
160     Subsection (2)(b)(i)(B) attesting to the accuracy of the supporting documentation; or
161          (ii) documentation deemed sufficient by the state registrar to establish the facts of the
162     error or omission.
163          (3) The department may amend a birth certificate's sex designation for an intersex
164     individual at the request of the individual or the guardian of the individual if:
165          (a) the sex designation indicating the biological sex at birth of the individual was
166     misidentified on the original certificate due to the individual's condition; and
167          (b) the department receives:
168          (i) a correction affidavit attesting the individual is intersex;
169          (ii) chromosomal, molecular, karyotypic, DNA, or genetic testing results that confirm
170     the individual is intersex; and
171          (iii) an affidavit from the health care facility, health care professional, or laboratory
172     testing facility that conducted the test or analyzed the test results, attesting to the test results
173     and accuracy.
174          Section 3. Section 26-2-11 is repealed and reenacted to read:
175          26-2-11. Birth certificate name or sex designation change -- Registration of court
176     order and amendment of birth certificate.
177          (1) An individual may obtain a court order in accordance with Title 42, Names, to
178     change the name on the individual's birth certificate.
179          (2) (a) A court may grant a petition ordering a sex designation change on a birth
180     certificate if the court determines by clear and convincing evidence that the individual seeking
181     the sex designation change:
182          (i) is not involved in any kind of lawsuit;
183          (ii) is not on probation or parole;
184          (iii) is not seeking the amendment:
185          (A) to commit a crime;
186          (B) to interfere with the rights of others;
187          (C) to avoid creditors;
188          (D) to influence the sentence, fine, or conditions of imprisonment in a criminal case;
189          (E) to commit fraud on the public; or
190          (F) for any other fraudulent purpose;
191          (iv) has transitioned from the sex designation of the biological sex at birth to the sex
192     sought in the petition;
193          (v) has outwardly expressed as the sex sought in the petition in a consistent and
194     uniform manner for at least six months; and
195          (vi) suffers from clinically significant distress or impairment due to the current sex
196     designation on the birth certificate.
197          (b) The court shall consider the following when making the determination described in
198     Subsection (2)(a)(iv):
199          (i) evidence of medical history, care, or treatment related to sex transitioning; and
200          (ii) evidence that the sex sought in the petition is sincerely held and part of the
201     individual's core identity.
202          (3) (a) (i) When determining whether to grant a sex designation change for a child who
203     is at least 15 years and six months old, unless the child is emancipated, the court shall appoint,
204     notwithstanding Subsection 78A-2-703(1), a guardian ad litem for the child.
205          (ii) Notwithstanding Subsection 78A-2-703(7), the child's parent or guardian is
206     responsible for the costs of the guardian ad litem's services unless the court determines the
207     parent or guardian is indigent in accordance with Section 78A-2-302.
208          (b) The guardian ad litem shall provide the court relevant evidence, whether submitted
209     by the child or other sources of evidence, regarding the following:
210          (i) whether the child is capable of making decisions with long-term consequences
211     independently of the child's parent or guardian;
212          (ii) whether the child is mature and capable of appreciating the implications of the
213     decision to change the sex designation on the child's birth certificate; and
214          (iii) whether the child meets the other requirements of this section.
215          (c) The guardian of a child described in Subsection (3)(a) shall:
216          (i) give notice of the proceeding to any known parent of the child; and
217          (ii) provide the court with a declaration of the status of any divorce or custody matter
218     pertaining to the child, including the case name, case number, court, judge, and current status
219     of the case.
220          (d) The court shall:
221          (i) consider any objection given by a parent;
222          (ii) close the hearing on a petition for a sex designation change;
223          (iii) receive all evidence; and
224          (iv) make a determination as to whether:
225          (A) all of the requirements of Subsection (2) have been met; and
226          (B) the evidence supports a finding by clear and convincing evidence that the sex
227     designation change is in the best interest of the child and would not create a risk of harm to the
228     minor.
229          (4) (a) A court may not grant a petition for a sex designation change if:
230          (i) the birth certificate is for a child who is younger than 15 years and six months old;
231     or
232          (ii) the child's parent or guardian with legal custody has not given permission.
233          (b) An order granting a sex designation change under this section is not effective until
234     the individual is at least 16 years old.
235          (5) A petition for a sex designation under this section may be combined with a petition
236     under Title 42, Names.
237          (6) (a) Upon the receipt of a certified order granting a birth certificate amendment, any
238     required application, and an appropriate fee, the department shall issue:
239          (i) a birth certificate that does not indicate which fields were amended unless requested
240     by the individual; and
241          (ii) an amendment history of the birth certificate, including the fields of the birth
242     certificate that have been amended and the date of the amendment.
243          (b) The department shall retain a record of all amendments to a birth certificate,
244     including any amendment history issued by the department.
245          (7) The provisions of this section are severable.
246          (8) This section only applies to birth certificates issued by the state.
247          Section 4. Effective date.
248          If approved by two-thirds of all the members elected to each house, this bill takes effect
249     upon approval by the governor, or the day following the constitutional time limit of Utah
250     Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,
251     the date of veto override.
252          Section 5. Coordinating S.B. 93 with H.B. 209 -- Substantive and technical
253     amendments.
254          If this S.B. 93 and H.B. 209, Participation in Extracurricular Activities Amendments,
255     both pass and become law, it is the intent of the Legislature that the Office of Legislative
256     Research and General Counsel shall prepare the Utah Code database for publication by
257     replacing each reference to "birth certificate" in Section 53G-7-1102 with "birth certificate and
258     birth certificate amendment history".