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. 6660

September 12, 1990

PUBLIC HEALTH CODE:

Records of stillbirths and/or fetal deaths

RECORDS AND RECORDATION:

Records of stillbirths and/or fetal deaths

VITAL STATISTICS:

Records of stillbirths and/or fetal deaths

Section 2834 of the Public Health Code prohibits the Department of Public Health from disclosing to the public records regarding stillbirths or fetal deaths which would enable the recipient to identify the biological parents of the fetus or stillborn infant; a copy or certified copy of such records may, however, be issued to the biological parents of a fetus or stillborn infant since the identifying information in it would not violate the statutory purpose of protecting the privacy of the biological parents.

Raj M. Wiener

Director

Michigan Department of Public Health

P.O. Box 30035

Lansing, Michigan 48909

My opinion has been requested regarding the authority of the Michigan Department of Public Health to issue certified copies of certain vital records which it maintains pursuant to Part 28 of the Public Health Code, 1978 PA 368, as amended, MCL 333.2801 et seq; MSA 14.15(2801) et seq. Two questions have been asked:

"1. Does the department have the authority to issue certified copies of stillbirth or fetal death certificates placed on file prior to September 30, 1978?

"2. If the department is permitted to issue such copies and certified copies, to whom may the copies be issued?"

I am advised that, for the years 1867 through 1904, stillbirths and/or fetal deaths were not uniformly recorded by the Department. In some instances they were recorded in the same manner as a live birth, with a concurrent recordation as a death, while in others, they were recorded only as a death. For the years from 1905 through 1949, stillbirths were recorded on certificates of birth, but the certificate contained an annotation that the birth was a stillbirth.

In 1950, the Department made several changes, initially recording a stillbirth on a separate certificate which it entitled, "Certificate of Stillbirth," and, subsequently, on a separate certificate which it entitled "Certificate of Fetal Death (Stillbirth)." The latter procedure was followed until 1968, when the form was again changed, this time to a "Certificate of Fetal Death." That procedure was followed until 1978, when, pursuant to section 2834 of the newly adopted Public Health Code, MCL 333.2834, MSA 14.15(2834), fetal deaths and stillbirths ceased to be entered in the permanent vital records of the Department.

Section 2834 of the Public Health Code, MCL 333.2834; MSA 14.15(2834), provides in pertinent part:

"(1) A fetal death occurring in this state shall be reported to the state registrar within 5 days after delivery. The state registrar shall prescribe the form and manner for reporting fetal deaths. The reporting form shall not contain the name of the biological parents, common identifiers such as social security or drivers license numbers or other information identifiers that would make it possible to identify in any manner or in any circumstances the biological parents of the fetus. A state agency shall not compare data in an information system file with data in another computer system which would result in identifying in any way a woman or father involved in a fetal death. Statistical information which may reveal the identity of the biological parents involved in a fetal death shall not be maintained."

"(5) The reports required under this section are statistical reports to be used only for medical and health purposes and shall not be incorporated into the permanent official records of the system of vital statistics. A schedule for the disposition of these reports shall not be provided for by the department.

"(6) The department or any employee of the department shall not disclose to any person outside the department, the reports or the contents of the reports required by this section in any manner or fashion so as to permit the person or entity to whom the report is disclosed to identify in any way the biological parents." (Emphasis added.)

It is apparent from the above provision that the Legislature now considers fetal deaths and/or stillbirths to be only of statistical value, for use by the department in furtherance of medical and health purposes. The information is not intended to be used to establish or certify a specific event. The Legislature has, moreover, expressly prohibited the Department and its employees from disclosing documents that would permit the identification of the parents of a dead fetus or stillborn infant.

The authority of the Department to disclose vital records is also subject to the provisions of section 2888(1) of the Public Health Code, MCL 333.2888(1); MSA 14.15(2888)(1), which states:

"To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, a person or governmental entity shall not permit inspection of, disclose information contained in vital records, or copy or issue a copy of all or part of a record except as authorized by this part, by rule, or by order of a court of competent jurisdiction. Procedures shall provide for adequate standards of security and confidentiality of vital records." (Emphasis added.)

This provision clearly limits the disclosure of vital records of the Department, other than by order of a court of competent jurisdiction, to those situations authorized by Part 28 of the Public Health Code or by administrative rule of the Department.

In respect to the issuance of certified copies of vital records, section 2882 of the Public Health Code, MCL 333.2882; MSA 14.15(2882), provides as follows:

"[U]pon 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.

"(b) A certified copy of a death record, including the cause of death, to any applicant.

"(c) A certified copy of a marriage or divorce record to any applicant, except as provided by rule."

The above-cited statutory provisions are explicit in what vital records shall be certified. They are, inter alia, records of "a live birth" and "a death."

"Live birth," obviously, means that the child was alive at the time of its birth. In contrast to a live birth is a stillbirth. The latter denotes when an infant is born dead. Stokes v Liberty Mutual Insurance Co, 213 So2d 695 (1968); Keyes v Construction Service Inc, 340 Mass 633; 165 NE2d 912 (1959). Accordingly, a record of a stillbirth of the Department does not constitute "a live birth record," and therefore, the Department is neither authorized nor required, under section 2882(a), to issue a certified copy of a certificate of a fetal death or stillbirth.

While a record of a fetal death or stillbirth clearly does not constitute "a live birth record," it could be argued that such a record does constitute a form of "death record" under section 2882(b) of the Public Health Code. Even assuming that a record of a fetal death or stillbirth does constitute a "death record," however, the disclosure of such records to the public is expressly prohibited by section 2834, supra, which specifically prohibits the disclosure of information in regard to a fetal death that "in any manner or fashion" would allow the biological parents to be identified. A review of the various forms utilized by the Department to record fetal deaths and stillbirths prior to September 30, 1978, reveals that each such form contains the name, address, and other identifying information concerning the biological parents of the fetus or infant. It follows that disclosure of a certified copy of such a record would disclose this information in violation of the prohibition set forth in section 2834 of the Public Health Code.

It does not follow, however, that section 2834 prohibits the issuance of copies or certified copies of such vital records in all instances. A statute should be construed to effectuate its purpose. Zawacki v Detroit Harvester Co, 310 Mich 415, 419-420; 17 NW2d 234 (1945). The purpose of the prohibition in section 2834 is to prevent "the person or entity to whom the report is disclosed to identify in any way the biological parents." If the person requesting the record or certified record is a biological parent of the fetus, the issuance of a copy or certified copy of the vital record of the stillbirth or fetal death would not violate the statutory purpose of protecting the privacy of the biological parents. Accordingly, there is no prohibition against issuing a copy or certified copy of the vital record to the biological parent of the fetus.

It is my opinion, therefore, that section 2834 of the Public Health Code prohibits the Department of Public Health from issuing copies or certified copies of stillbirth or fetal death certificates placed on file prior to September 30, 1978. It is my further opinion, however, that a copy or certified copy of such records may be issued to the biological parents of a fetus or stillborn infant since the identifying information in it would not violate the statutory purpose of protecting the privacy of the biological parents.

Frank J. Kelley

Attorney General