_____________ bill NO. _____________

INTRODUCED BY _________________________________________________

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING the USE OF ORIGINAL BIRTH CERTIFICATE INFORMATION REGARDING A PERSON'S SEX ON GOVERNMENT DOCUMENTS; ESTABLISHING THAT USE OF OTHER INFORMATION CONSTITUTES FALSE SWEARING; ALLOWING FOR CHANGES TO ORIGINAL BIRTH CERTIFICATE INFORMATION UNDER CERTAIN CIRCUMSTANCES; REVISING BIRTH CERTIFICATE FEES; providing definitions; and AMENDING SECTIONS 50-15-101, 50-15-111, 50-15-204, 50-15-221, AND 50-15-224, MCA."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Use of birth certificate information for government-issued documents -- false swearing. (1) Except as otherwise provided in this section, the information regarding a person's sex that is provided on the original certificate of birth filed in accordance with 50-15-221 must be used for any form or license issued by the state or any political subdivision of the state.

(2) If information on a government-issued document or license must be changed as allowed under this section, the change must be made at the time that the license or other document is due to be renewed or resubmitted.

(3) (a) A birth certificate issued to a person with chromosomal intersex conditions or a person unable to produce ova or sperm due to a condition of birth must indicate the person's sex to the best of the ability of the person providing information for the birth certificate. The designation must be reflected in all documents or licenses issued by the state or a political subdivision.

(b) A person meeting the requirements of subsection (3)(a) may apply to change the designation of sex on the person's birth certificate and other documents or licenses issued by the state or a political subdivision when the person is 18 years of age or older. The altered documents must be considered the original documents.

(4) A clerical error in the original birth certificate or other documents must be corrected without charge. Corrected documents must be considered the original documents.

(5) A person who uses a sex not indicated on the person's original birth certificate for a government-issued document or license is subject to the penalties for false swearing provided in 45-7-202.

Section 2. Section 50-15-101, MCA, is amended to read:

"50-15-101. Definitions. Unless the context requires otherwise, in parts 1 through 4 the following definitions apply:

(1) "Advanced practice registered nurse" means an individual who has been certified as an advanced practice registered nurse as provided in 37-8-202.

(2) "Authorized representative" means a person:

(a) designated by an individual, in a notarized written document, to have access to the individual's vital records;

(b) who has a general power of attorney for an individual; or

(3) "Dead body" means a human body or parts of a human body from which it reasonably may be concluded that death occurred.

(4) "Department" means the department of public health and human services provided for in 2-15-2201.

(5) "Dissolution of marriage" means a marriage terminated pursuant to Title 40, chapter 4, part 1.

(6) "Female" means a member of the human species that, under normal development, produces a relatively large, relatively immobile gamete, or egg, during her life cycle and has a reproductive and endocrine system oriented around the production of that gamete. An individual who cannot produce an egg due to a condition at birth, but who has male sex chromosomes and nonambiguous internal genitalia is a female member of the human species.

(6)(7) "Fetal death" means death of the fetus prior to the complete expulsion or extraction from its mother as a product of conception, notwithstanding the duration of pregnancy. The death is indicated by the fact that after expulsion or extraction, the fetus does not breathe or show any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. Heartbeats are distinguished from transient cardiac contractions. Respirations are distinguished from fleeting respiratory efforts or gasps.

(7)(8) "Final disposition" means the burial, interment, cremation, removal from the state, or other authorized disposition of a dead body or fetus.

(8)(9) "Invalid marriage" means a marriage decreed by a district court to be invalid for the reasons contained in 40-1-402.

(9)(10) "Live birth" means the complete expulsion or extraction from the mother as a product of conception, notwithstanding the duration of pregnancy. The birth is indicated by the fact that after expulsion or extraction, the child breathes or shows any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. Heartbeats are distinguished from transient cardiac contractions. Respirations are distinguished from fleeting respiratory efforts or gasps.

(10)(11) "Local registrar" means a person appointed by the department to act as its agent in administering this chapter in the area set forth in the letter of appointment.

(12) "Male" means a member of the human species that, under normal development, produces small, mobile gametes, or sperm, during his life cycle and has a reproductive and endocrine system oriented around the production of that gamete. An individual who cannot produce sperm due to a condition at birth, but who has female sex chromosomes and nonambiguous external genitalia is a male member of the human species.

(11)(13) "Person in charge of disposition of a dead body" means a person who places or causes a dead body or the ashes after cremation to be placed in a grave, vault, urn, or other receptacle or otherwise disposes of the body or fetus and who is a funeral director, an employee acting for a funeral director, or a person who first assumes custody of a dead body or fetus.

(12)(14) "Physician" means a person legally authorized to practice medicine in this state.

(13)(15) "Registration" means the process by which vital records are completed, filed, and incorporated into the official records of the department.

(14)(16) "Research" means a systematic investigation designed primarily to develop or contribute to generalizable knowledge.

(15)(17) (a) "Stillbirth" means a fetal death occurring after a minimum of 20 weeks of gestation.

(b) The term does not include an abortion, as defined in 50-20-104.

(16)(18) "System of vital statistics" means the registration, collection, preservation, amendment, and certification of vital records. The term includes the collection of reports required by this chapter and related activities, including the tabulation, analysis, publication, and dissemination of vital statistics.

(17)(19) "Vital records" means certificates or reports of birth, death, fetal death, marriage, and dissolution of marriage and related reports.

(18)(20) "Vital statistics" means the data derived from certificates or reports of birth, death, fetal death, induced termination of pregnancy, marriage, and dissolution of marriage and related reports."

Section 3. Section 50-15-111, MCA, is amended to read:

"50-15-111. Certified copy fees -- transfer. (1) The department shall prescribe, by rule, a fee for:

(a) a certified copy of certificates or records other than a birth certificate or death certificate;

(b) a search of files or records when a copy is not made;

(d) the replacement of a birth certificate subsequent to adoption, legitimation, paternity determination or acknowledgment, or court order;

(e) filing a delayed registration of a vital event;

(f) the amendment of a vital record, after 1 year from the date of filing; and

(g) other services specified by this chapter or by rule.

(2) The minimum fee for a certified copy of a birth certificate must be $15.

(2)(3) (a) The minimum fee for a death certificate must be:

(i) $16 for each certified copy, including any additional certified copies requested at the same time as the first certified copy; and

(ii) $14 for each informational copy of a death certificate.

(b) The department may, by rule, prescribe a fee for a death certificate that is higher than the minimum fee listed in subsection (2)(a) (3)(a).

(3)(4) Fees received under subsection (1) must be deposited in the state special revenue fund to be used by the department for:

(a) the maintenance of indexes to vital records;

(b) the preservation of vital records; and

(4)(5) For fees received under subsection (2)(a) (3)(a), the department shall:

(a) transfer $1 of each fee to the department of labor and industry for use as provided in 37-19-204; and

(b) deposit the remainder of the fee in the state special revenue fund to be used by the department for the purposes listed in subsection (3)(4)."

Section 4. Section 50-15-204, MCA, is amended to read:

"50-15-204. Delayed or amended birth certificate. (1) (a) If a certificate of birth for a person born in this state has not been filed within 1 year of the birth, a delayed certificate of birth may be filed in accordance with rules adopted by the department. A delayed certificate of birth may not be registered until the requirements regarding facts pertaining to the delayed certificate, as specified by rule, have been met.

(b) A birth of a person in this state whose name has not been registered within 1 year after the birth must be registered on a delayed certificate of birth form. The delayed certificate must contain the date of registration and a summary statement of the information submitted to explain the delayed registration.

(d) The department may not register a delayed certificate of birth if an applicant for a delayed certificate of birth does not submit the minimum documentation required by rule for delayed registration or if the department has cause to question the validity or adequacy of the applicant's sworn statement or the documentation provided to establish the facts and the deficiencies are not corrected. The department shall advise the applicant of the reasons for the refusal to register the delayed certificate of birth. The department shall advise the applicant of the right to seek an order from a court of competent jurisdiction to obtain registration of the delayed certificate of birth as provided in 50-15-222.

(e) The department may, by rule, provide for the dismissal of an application for registration of a delayed certificate of birth that is not actively pursued.

(2) The department or its designee may amend a birth, death, or fetal death certificate upon submitting proof as required by the department.

(3) The department shall adopt rules establishing the circumstances under which vital records may be corrected or amended and the procedure to correct or amend those records.

(4) (a) If Except as provided in subsection (4)(b), if a birth certificate is amended by the department after filing, the certificate must show the date of the amendment and the mark "amended". A summary statement of the evidence in support of the amendment must be endorsed on the certificate.

(b) A birth certificate amended in accordance with [section 1] may not be marked as amended and must be considered the original certificate.

(5) The probative value of a "delayed" or "amended" certificate of birth is determined by the judicial or administrative body before whom the certificate is offered as evidence."

Section 5. Section 50-15-221, MCA, is amended to read:

"50-15-221. Birth registration. (1) A certificate of birth must be filed as specified in this section with the department for each live birth that occurs in this state. Unless otherwise directed by the department, the certificate must be filed within the time prescribed by the department by rule after the birth. The birth certificate must be registered if it has been completed and filed in accordance with this section and rules adopted to implement this section.

(2) If a birth occurs in a health care facility, the birth certificate must be completed and filed by the attending physician or the physician's designee.

(3) If a birth occurs in or en route to a health care facility, the person in charge of the facility or the person's authorized designee shall obtain the personal data concerning the newborn child, prepare the certificate, and certify that the child was born alive at the place, at the time, and on the date stated. Certification may be by signature or by an approved electronic process. The person referenced in this subsection shall file the certificate as directed in subsection (1). The physician or other person in attendance at the birth shall provide the medical information required by the certificate within 72 hours after the birth.

(4) The department shall, by rule, determine what evidence may be required to establish the facts of birth if the birth occurs at a place other than a health care facility. In accordance with rules promulgated by the department, the certificate must be prepared and filed by one of the following persons in the indicated order of priority in subsections (4)(a) through (4)(e):

(a) the physician or the physician's designee or a midwife licensed pursuant to Title 37, chapter 27, in attendance at or immediately after the birth;

(b) a person in attendance at or immediately after the birth;

(d) in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred; or

(e) the local registrar, if 50-15-202 applies.

(5) When a birth occurs on a moving conveyance within the United States and the newborn child is first removed from the conveyance in this state, the birth must be registered in this state by a person listed in subsection (4) and the place where the child is first removed from the conveyance is considered the place of birth. When a birth occurs on a moving conveyance while in international waters or air space or in a foreign country or its air space and the child is first removed from the conveyance in this state, the birth must be registered by a person listed in subsection (4) in this state, but the certificate must indicate the actual place of birth insofar as the place can be determined.

(6) For the purposes of birth registration, the woman who gives birth to the child is considered to be the mother, unless otherwise provided by state law or determined by a court of competent jurisdiction prior to the filing of the birth certificate. Information about the father must be entered as provided in subsection (7).

(7) (a) If the mother was married at the time of conception or birth or between conception and birth, the name of the husband must be entered on the certificate as the father of the child, unless:

(i) other paternity has been determined by a court of competent jurisdiction;

(ii) the mother and the husband execute joint or separate affidavits attesting that the husband is not the father of the child. Affidavits must be notarized, and signatures of the mother and of the husband must be individually notarized on any joint affidavit. If affidavits are filed, information about the father must be omitted from the certificate.

(iii) the mother executes an affidavit attesting that the husband is not the father and names a putative father, the putative father executes an affidavit attesting paternity, and the husband executes an affidavit denying paternity. Affidavits may be joint or individual or a combination of joint and individual affidavits. Each signature on an affidavit must be individually notarized. If all affidavits are filed, the putative father must be shown as the father on the certificate.

(b) If the mother was not married at the time of conception or birth or between conception and birth, the name of the father may not be entered on the certificate without an affidavit of paternity signed by the mother and the person to be named as the father.

(c) If paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child must be entered on the certificate of birth in accordance with the finding and order of the court.

(d) If the father is not named on the certificate of birth, information about the father may not be entered on the certificate.

(e) Affidavits required under this subsection (7) must be filed with the department.

(8) Either parent of the child, or another informant, shall verify the accuracy of the personal data to be entered on the certificate in order to permit the filing of the certificate within the time prescribed in subsection (1).

(9) (a) A certificate of birth issued by the department must allow for the designation of a person's sex as male, female, or nonspecified. The designation of nonspecified may be used only for a person born with a chromosomal intersex condition or a person unable to produce ova or sperm due to a condition of birth or a hormonal condition that occurs or is diagnosed after birth and causes infertility.

(b) The initial designation of sex on a birth certificate must be based on the observable physical characteristics of the child.

(9)(10) A certificate of birth filed after the time prescribed in subsection (1) but within 1 year from the date of birth must be registered by the natural parents, the adoptive parents, or the person having legal custody of the child, on the standard form of live birth certificate in the manner prescribed in this section and by rule. The certificate may not be designated as delayed. The department may require additional evidence in support of the facts of birth."

Section 6. Section 50-15-224, MCA, is amended to read:

"50-15-224. Sex change designation on birth certificate. (1) The Except as provided in [section 1], the sex of a person designated on a birth certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of the person born in Montana has been changed by surgical procedure.

(2) The order must contain sufficient information for the department to locate the original birth certificate. If the person's name is to be changed, the order must indicate the person's full name as it appears on the original birth certificate and the full name to which it is to be amended.

(3) If the order directs the issuance of a new birth certificate that does not show amendments, the new birth certificate may not indicate on its face that it was amended.

(4) This section does not apply if the sex of a person was designated incorrectly on the original birth certificate due to a data entry error."

NEW SECTION. Section 7. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 50, chapter 15, part 2, and the provisions of Title 50, chapter 15, part 2, apply to [section 1].

Coordination SECTION. Section 8. Coordination instruction. If Senate Bill No. 458 is passed and approved and if it contains a section amending 50-15-101, then [section 2 of this act], amending 50-15-101, is void.