The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5410 December 19, 1978 PUBLIC HEALTH CODE: Recording of birth certificates RECORDS AND RECORDATION: Recording of birth certificates VITAL STATISTICS: Birth certificates When departmental files contain both an original record of birth and a delayed registration of birth pursuant to a probate court order, the original record of birth must be used by the department in certifying as to the fact of birth. Maurice S. Reizen, M.D. Director Michigan Department of Public Health 3500 N. Logan Street, Box 30035 Lansing, Michigan 48909 You have requested my opinion on the following question: 'When requested to provide certified copies of birth records by a person eligible to receive the record and when departmental files contain both an original record of birth and a delayed registration of birth established by and filed by a probate court for that person, which of the two records should the department use in certifying as to the facts of birth?' The Public Health Code, 1978 PA 368, MCLA 333.1101 et seq; MSA 14.15(1101) et seq (hereinafter 'the code'), provides for the registration of births in this state. Sections 2821 and 2822 thereof require that such registration be made within five (5) days by a person with knowledge of the facts of the birth. '(1) Birth registration is required for each individual born in this state. (2) A record of birth for each live birth which occurs in this state shall be filed at the office of the local registrar not more than 5 days after the birth. The birth shall be registered when the filing is completed.' 1978 PA 368, Sec. 2821. 'The following persons shall report a live birth which occurs in this state: (a) When a live birth occurs in an institution or enroute thereto, the individual in charge of the institution or his or her designated representative shall obtain the personal data, prepare the certificate, secure the signatures required by the certificate, and file the certificate with the local registrar or as otherwise directed by the state registrar within 5 days after the birth. The physician or other individual in attendance shall provide the medical information required by the certificate and certify to the facts of birth not later than 72 hours after the birth. If the physician or other individual does not certify to the facts of birth within 72 hours, the individual in charge of the institution shall complete and sign the certification. (b) When a live birth occurs outside an institution, the record shall be prepared, certified, and filed with the local registrar by 1 of the following individuals in the indicated order of priority: (i) The physician in attendance at or immediately after the live birth. (ii) Any other individual in attendance at or immediately after the live birth. (iii) The father, the mother, or, in the absence of the father and the inability of the mother, the individual in charge of the premises where the live birth occurs.' 1978 PA 368, Sec. 2822 Section 2882(a) of the code provides: 'Upon written request and payment of the prescribed fee, the state registrar or local registrar shall issue: (a) A certified copy of a live birth record or a certificate of registration containing the items indicated in section 2881(2) to the individual who is the subject of the live birth record, a parent named in the birth record, an heir, legal representative, or legal guardian of that individual, or a court of competent jurisdiction.' Section 2881(2) of the code lists the items referred to in Sec. 2882(a) above: 'Upon written request and payment of the prescribed fee, the state registrar or local registrar shall verify for any person the following facts: the name or names of the individual to whom the vital record pertains, the nature of the event, the date of the event, the place of the event, and the date of filing.' (Emphasis added) Sections 2827 and 2828 provide the procedure for the late registration of births and for the creating of a 'delayed' certificate of birth. '(1) When the birth of an individual born in this state has not been registered within the time period prescribed in section 2821, a certificate of birth may be filed in accordance with procedures established pursuant to section 2891. (1) The certificate shall be registered subject to evidentiary requirements the department prescribes to substantiate the alleged facts of birth. (2) A certificate of birth registered 1 year or more after the date of birth shall be marked 'delayed' and show on its face the date of the delayed registration. (3) A summary statement of the evidence submitted in support of the delayed registration shall be endorsed on the certificate.' 1978 PA 368, Sec. 2827. '(1) If an applicant does not submit the minimum documentation required by rules for delayed registration of a birth or if the state registrar has reasonable cause to question the validity or adequacy of the applicant's sworn statement or the documentary evidence, the state registrar shall not register the delayed certificate of birth and shall advise the applicant of the reasons for this action and of the applicant's right of appeal to the probate court of the county of residence or birth. (2) The department may provide for the dismissal of an application which is not actively prosecuted. (3) If, on the basis of the evidence presented, the court finds that the individual for whom a delayed certificate of birth is sought was born in this state, the court shall make findings as to the place and date of birth, parentage, and other findings required by the case and shall issue an order on a form prescribed and furnished by the state registrar to establish a certificate of birth. The order shall include the birth data to be registered, a description of the evidence presented, and the date of the court's action. (4) The clerk of the court shall forward the order to the state registrar not later than the tenth day of the calendar month following the month in which the order was entered. The order shall be registered by the state registrar and shall constitute the certificate of birth. (5) The state registrar shall forward a copy of a delayed registration to the local registrar of the district where the birth occurred.' 1978 PA 368, Sec. 2828. A plain reading of the statute shows that birth registrations must be made within five days of birth. On the other hand, Secs. 2827 and 2828 allow for 'delayed' birth certificates to be filed when the subject births are unreported or unrecorded. In the latter case, when requested, the probate court must establish the facts of the birth. Thus, the delayed record serves as a substitute for the original and is issued only where an original record does not exist. When that original record is found to actually exist, however, there is no need for the substitute record. The original record, by its very nature, provides a more accurate and a more precise reflection of the facts surrounding the birth. Accordingly it is my opinion that, when departmental files contain both an original record of birth and delayed registration of birth pursuant to a probate court order, the original record of birth must be used by the department in certifying as to the facts of the birth. In such a situation, however, the delayed registration must be withdrawn from the system of vital statistics in accordance with the procedures established by rules of the Director pursuant to Sec. 2896 of the code. Where the delayed registration was ordered by the probate court, the court should be notified that an original record exists and proceedings should be commenced to set aside the court order and to provide for its removal from the system of vital statistics. Frank J. Kelley Attorney General (1)