Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on the record of an insured individual who has died or an individual who is entitled to old-age or disability benefits if, among other things, the claimant is the individual’s child. See 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350(a)(1), 404.354. The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. The agency may deem a claimant to be an individual’s natural child under section 216(h)(3) of the Act if the claimant is the individual’s biological child and certain criteria are met, including a written acknowledgment establishing the claimant as the number holder’s child; a court decree of paternity or court order for support establishing the claimant as the number holder’s child; or other satisfactory evidence establishing the claimant as the number holder’s child if the number holder was living with or contributing to the child’s support. See 42 U.S.C. § 416(h)(3); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100. It is our understanding that your request concerns the use of an Oregon birth certificate as evidence of a written acknowledgment of paternity or court decree of paternity.^[4] See POMS GN 00306.105C.2, GN 00306.110C, GN 00306.120.

POMS GN 00306.120 sets forth the agency’s policy for using information from a non-marital child’s birth certificate as evidence of a written acknowledgment of paternity or proof of a court order determining paternity for purposes of section 216(h)(3) child status. See POMS GN 00306.105C.2, GN 00306.110C, GN 00306.120. This provision explains that certain State laws or regulations require a father’s written consent or a court determination in order to identify a father as a non-marital child’s father on the birth certificate. POMS GN 00306.120B. The agency is instructed to contact the State vital statistics office to determine if a written statement or court determination was filed with the birth certificate for a particular child. POMS GN 00306.120B.1. Alternatively, the agency may presume that there has been written acknowledgment or a court determination of paternity if the birth certificate shows illegitimacy and a precedent legal opinion shows that the applicable State law requires the written acknowledgment or court determination of paternity to be filed in order for the father’s name to appear on the birth certificate or for the child’s last name to be the same as the father’s on the birth certificate. POMS GN 00306.120B.2. It is our understanding that this question of State law is the focus of your legal opinion request. There is no current published precedent legal opinion for Oregon in POMS PR 01210.000, the section 216(h)(3) child POMS subchapter containing opinions on State law requirements for showing information about a father on a child’s birth certificate for section 216(h)(3) child determinations. Thus, per your request, we have set forth Oregon law on the naming of a father on a birth certificate for a non-marital child.

Under Oregon law, a report of live birth for all births that occur within Oregon is required to be submitted to the State within five calendar days after the child’s birth. Or. Rev. Stat. § 432.088(1) (effective Jan. 1, 2018, to present). In terms of identifying the child’s parents on the birth record, Oregon law provides the following rules relevant to a child born outside of marriage (or a registered domestic partnership).^[5]

The Birth Mother or the Mother Identified in a Court Order is to be Named as the Child’s Mother on the Birth Certificate

Oregon law states that “the woman who gives live birth is the birth mother.” Or. Rev. Stat. § 432.088(8). If a court determines that a woman other than the birth mother is the biological or genetic mother, the court may order the state registrar to amend the record of live birth. Id.

If the Birth Mother is Unmarried, the Parent Identified in a Voluntary Acknowledgment of Paternity Form is to be Named as the Child’s Other Parent on the Child’s Birth Certificate

If the birth mother is not married at the time of either conception or live birth, or within 300 days before the live birth, the name of the other parent shall not be entered on the live birth report unless a voluntary acknowledgment of paternity form or other form prescribed in section 432.098 of the Oregon Revised States is: (A) signed by the birth mother and the person to be named as the other parent, and (B) filed with the State registrar. Or. Rev. Stat. § 432.088(9)(b); see also Or. Rev. Stat. § 432.093 (“Any health care facility … shall make available to the biological parents of any child born live or expected to be born in the health care facility, a voluntary acknowledgment of paternity form when the facility has reason to believe that the mother of the child is unmarried. The responsibility of the health care facility is limited to providing the form and submitting the form with the report of live birth to the State Registrar of the Center for Health Statistics. The biological parents are responsible for ensuring that the form is accurately completed.”); Or. Rev. Stat. § 432.098(1) (“When the [voluntary acknowledgment of paternity] form is signed by both biological parents and witnessed by a third party, the form establishes parentage for all purposes when filed with the State Registrar of the Center for Health Statistics, provided there is no second parent already named on the report of live birth….When there is no second parent named on the child’s record of live birth, the filing of such voluntary acknowledgment of paternity form shall cause the state registrar to place the name of the parent who has signed the voluntary acknowledgment of paternity form on the record of the live birth of the child….”); Or. Rev. Stat. § 109.065(1)(e) (an effective acknowledgment of paternity establishes parentage between a person and a child); Or. Rev. Stat. § 109.070(4) (establishing of paternity by a voluntary acknowledgment of paternity).

Parents Identified in a Court Order Determining Parentage are to be Named as Parents on the Child’s Birth Certificate

In any case in which paternity or parentage of a child is determined by a court, or by an administrative determination of paternity or parentage, the Center for Health Statistics shall enter the name of each parent on the new record of live birth. Or. Rev. Stat. § 432.088(9)(d). The Center of Health Statistics shall change the last name of the child if so ordered by the court. Id.

In summary, as to the specific question posed, for a child born to a birth mother who is not married (or in a registered domestic partnership), Oregon law instructs that a second parent will only be named on the child’s Oregon birth certificate if that second parent (along with the birth mother) has completed a voluntary acknowledgment of paternity in accordance with Oregon law or if that second parent has been determined to be the child’s parent through a valid court order.^[6] See Or. Rev. Stat. § 432.088(9)(b), (d). As such, in applying agency policy set forth in POMS GN 00306.120B.2 for the purpose of determining status as a child under section 216(h)(3) of the Act, the agency may presume that there has been a written acknowledgment of paternity or a court determination of paternity for a father named on a non-marital child’s Oregon birth certificate.