Saturday, February 20, 2010

Just A Bit Of Constitutional Info

In reference to the "lively debate" (more like a spite-fight) referred to in my last post, I would like to share the learned opinion of a friend of mine who teaches an introductory, constitutional law course at CFU.

I had asked him about the constraints, both written and implied, by the HIPAA regulations. His answer gave me a lot of food for thought.

Citing constitutional premise, he referred to the guarantee of freedom of religion. He said that this important freedom, PER IMPLICATION, also can be truthfully and successully argued to guarantee,  for the idividual, freedom FROM religion. It is a tacit understanding of that legality. In other words, because of the foresight of the authors of the constitution, no one can be forced to believe, participate or observe any organized religions, sects or associated dogma if they do not choose to do so.

He then posited that, since the HIPAA regulations were made law, it made, in effect, the medical and psychiatric history of each person the sole property of that person. While it does keep medical professionals from arbitrarily sharing our information, it also, PER IMPLICATION, keeps anyone else from being able to access that information on demand. Were such a demand to be attached to, say, a bill seeking open records for adult adoptees only, and were passed, it could be challenged, probably successfully, by the individual to whom such a demand would be made. Implied here is that we can refuse to comply and our physicians can, as well.

While I decry the involvement of the ACLU in keeping adoption records closed and original birth certificates sealed, I would think that they would have a really good time with this one. I would have no problem seeking out the help of the ACLU is anyone were to feel they were entitled to my personal information.

What I am wondering is what helpful person decided that this demand should be part of any law granting adult adopted people the right to their OBC and adoption records? If the authors of these bills are working hand-in-hand with adoption professionals, then that answers my question. Most mothers, if asked by their adult children for help with medical issues, would be happy to dig into the family history and find out what they could to help. But when private information of one citizen can be demanded, by law, by another  citizen,  then something has gone badly awry with our system of individual freedoms.

My friend is an attorney and an educator. This is not an area where he has delved deeply and his views and answers were from his knowledge of constitutional law. But I really liked what he had to say.

It would really look bad for the open-records group if people started filing suit against their natural mothers for information and compensation for medical problems. In fact, it would look downright snarky and entitled.

It would also look like someone wants to punish mommy.

29 comments:

joy said...

I was given my entire adoption record.

I can tell you what was in it, my birth certificate, my social history, my six-point inspection letter declaring me adoptable. Copies of the relinquishment signed by my mother.

What do people think are in them?

I got no information on my mother outside of when she signed the relinquishment and her name on my birth certificate. I didn't even get an extensive medical history on myself, they thought I had a heart problem at first so I know I received extra medical care. Not even that was in there.

Robin said...

Joy, it's not what people think is in them. It is what some of the pending legislation is asking for...morhers who are reluctant to be contacted will be required, by law, to fill out a medical information form. That kind of thing opens up a very scary can of worms. It infringes on basic human rights to privacy...not identity but personal information.

Sandy Young said...

I just took a look at the pending legislation in MO which is the state in which my son was born,so it directly affects me. They have included a Medical History form, which will include but is not limited to the following:
1. congenital or genetic history
2. Psychosocial history
3. Chronic diseases
4. Infectious diseases
5. Allergies
6. Pregancy and birth history
7. Deaths of birth family members that may affect the medical history

These records are on the mother, the mother's family who will likely not be aware that this paperwork is being filed on them.

I will not fill out or submit to any state or governmental agency any form that increases my liability for something over which I had no control in the first place.

Sandy Young said...

Joy, with all due respect, how do you KNOW that you got your entire adoption record? Because the social worker told you you did? I got my entire file about 5 years ago. About 3 months ago I got more. I just filed a FOIA letter with them and expect to finally get all the rest.

If you don't have the court proceedings from the termination of your mother's parental rights, the adoption of you, the foster records on yourself and other paperwork of court proceedings surrounding the fostering and adoption, the original birth certificate, the pregnancy history, the psychosocial history of your mother and her family, the list of genetic and communicable diseases, you really don't have the full file. You have only what the agency felt they could give you without making themselves liable.

Robin said...

Thanks Sandy. Just reading that gives me chills. This makes me think that, just maybe, the adopted person who cries that they had no control are looking to control the mothers for the rest of their days??? I will not take that from anyone, least of all my own flesh and blood.

Lori said...

Ladies, Oh holy cow, this is what I was saying all along. This is not just about adoptees rights, it is about our rights. I have no issue with giving my daughter whatever she wants as far as medical history.

I would have kittens and fight any law that made it ok for her or anyone else to dig through our medical records! OMG!

It does not just apply to this issue - remember what she said about "PER IMPLICATION, also can be truthfully and successully argued to guarantee" this applies to all laws.

I have been a paralegal for around 20 years. I can tell you this, if we vote for a forced allowance for adult adoptees to obtain medical records, we leave the door open for employers, insurance companies and anyone that could possibly have any interest in how our health is to obtain them with a simple request citing the law that allows adoptees to obtain the same records.

Don't get me wrong - I think that voluntary medical history should be something we do out of self-respect (how can you respect yourself if you fail to share something so important as that with someone it will effect), but not out of force and if there is a no contact issue, identifying information is easily removed - names substituted for relationships - ie aunt, uncle, grandparent, parent.

But force, over my dead and rotting corpse - and I plan on a cremation.

Lori said...

Joy, I hate to say it, but Sandy is right. No agency is going to admit they screwed up. Trust me- the records you got are nothing compared to the real file.

My personal file was 4 inches thick when I saw it last and my daughter's was 2 - neither of us can even get our medical information out of the files. And absolutely none of the court documents - because the judge ordered social services to return my child to my custody and close the case and the social worker failed to follow his instructions. Do you think they would admit that they stole a child?

joy said...

@Sandy, I got the entire record that was filed with the court where I was adopted. So I am sure the actual agency would have had other stuff as well on me, certainly my non I.D. could not have been gleaned from my court records.

Mine was just my legal adoption record, I got rid of all of it as I found it distressing, so I can't re-review it, but I def. remember the tpr, the bc, the adoptability letter, it seems there would have been a decree in there too, but that wouldn't have been so shocking to me.

The psycho-social history would have been of MY mother and MY family by the way not my mother and her family exclusive of me. It was not in the court records though.

I am really not sure I am following you, but if I understand what you are saying, you are saying that you don't believe that mothers should give their children their medical history.

Medical history is a two-way street actually, I have a condition that might effect my natural sisters, do you feel I should keep this from them?

I am not sure I follow the perceived harm either, is there really a thought I could or would want to sue my mother for giving me a propesity to bronchial infections? That seems a bit outer-limits.

Maybe I just don't have enough information, I never saw the FB thread.

Robin said...

Joy, your medical history is just that...yours. It should be your choice to share it. It should not be legally and forcefully DEMANDED and we mothers should not be made legally liable for this. The only way this could be an equitable "two-way-street" would be for mothers to be included in access to records and adoptees be required to fill out a medical form for us. Read the requirements of this bill. This is a control issue, laying the onus of all on the head of the mothers. The mother is even required to furnish information that is not hers, to which she may not have access and for which, if it is not included, she will be held liable. NOT FAIR.

I can only speak for myself. I felt that it was my responsibility to share any PERTINENT medical history with my adult children. But, had it been legally demanded, I would have balked. THAT is a true invasion of our privacy.

I think that adoptees have a right to their OBC's and our identities. Then, they should, in a civil and respectful manner, ask their mothers for any further information. We are still citizens and human beings. We do not exist to serve our children anymore than you exist to serve us. This bill asks for something we don't feel constrained to turn over, every little detail and all, to our raised children.

I have allowed a civil debate on this, even though I am not open to arguing. Somewhere, we mothers have to demand fair and equitable treatment. We didn't receive it when our children were taken from us. I'll be damned if we are required go through it again. This one will be fought. It's time for our children to stop operating from resentment and start thinking rationallly about what they, actually and in reality, deserve.

We love you and do understand that your civil rights have been abridged. But does that make it right to abridge ours? That has already been done to us....when you were taken from us. Believe me, we know what it is like to be treated differently from everyone else and not allowed vital information (the welfare and locations of our surrendered children). We have spent a large part of our lives as second-class citizens, shamed, blamed and seen as morally lacking by people who don't even know us. It's the other side of the same coin, Hon. Haven't we all been punished enough?

Lori said...

Robin - perfect - HERE HERE! Well said.

Sandy Young said...

Boy Howdy, you sure can turn a phrase there, Madam R! You said it ALL! Bravo!

lava said...

Actually, I agree with you.

I was just confused, I didn't have enough information.

I think the MO bill is not good in any respect.

I just kept hearing this term, "nitty-gritty" being thrown around, and I was hearing that through an adoptee filter, of "she won't tell me who my father is" which like I said, wasn't an issue for me.

I have heard it a lot.

But as to what you are talking about, I mean realistically it is somewhat stupid even if it could be applied, you would have to also assume the father is known, not only at the time of birth, but at the current time, and all of his medical information. You would have to assume that an adoptee's own mother had all that information which she may well not.

Even in families where adoption is not an issue, there is disocrd, disowning of one another and on. There is no reason to assume that an average woman even knows how to fill out her own medical history correctly, for a variety of reasons.

I am very grateful to know what I know, and to have a mother who thinks I am important and shares things with me.

That doesn't make the MO proposed legislation good, it stinks. Now that is a surprise something in adoption stinking, Oh those unicorns must have snacked on some rotten rainbows again.

Anyway, thanks for explaining, I know from experience that can be tedious. :)

Joy

Robin said...

Joy, just to address a couple of small points. It would be unfair to the majority of mothers to assume that we didn't know the fathers of our children...most of us definitely did. Very few of us fit the slut stereotype. I actually put myself on the line, when my son was hospitalized with a seizure, to call the family of his father, who raped me, to get whatever info might help his doctors. Most "average" women from our day were taught the basics in school and would be very capable of filling out any form with the INFORMATION THEY DO HAVE. It is the fact that it is being demanded of us....that we are asked to be responsible for the information of others to which we may not have any access...and that placing such a provision into law would leave us open to be the targets of malicious lawsuits and other legal action.

It was only after my father developed TypeII Diabetes that we asked my grandmother if there was a history. She had some vague recollection of one of my great-great aunts having "sugar problems."

This bill assumes that any normal family keeps a record from generation to generation of all the ailments ever suffered by anyone related. Then it assumes that, if we approach the father and his family, that what they know will be offered to us. It's punitive and unrealistic...period.

Yes, the bill does stink. I can smell it from here.

Robin said...

Oh, and for the record, my history of sex partners, psychological difficulties or anything else of that nature is NO ONE'S BUSINESS but my own.

Anonymous said...

thak you Robin, excellent and timely post.

I asked the attorneys in my family for an opinion on forcing the natural parents to supply medical history. The medical information bills and laws which have already been passed in some states are already violating natural family's privacy rights.

The attorney said that making the medical history of the family a "civil right" which is what the proposed law in NY S5269 says, would mean that natural families would be held liable for the accuracy and completeness of the information.

Adoption agencies have been sued and lost...for not providing medical history to adopters, or for refusing to reveal mothers'medical history to adopters. Agencies want to pass that liability onto the mothers.

Legally, mothers who surrendered have no obligations to our children. Laws which demand that we supply the medical information violate the relinquishment laws. I have read a number of surrender documants and they say the mother 'relinquishes all custody and rights to the child" and that "the mother no longer has responsibility or obligation to the child once the parental rights are terminated."

Morally, of course I agree with you... We should supply medical information to our surrendered children when we can find them.. And I did that for 18 years for my son...until his death from a disease that actually ran in my family that I didn't know about.



The state where I surrendered now takes a 10 page medical history of the relinquishing mother and her relatives from anyone who plans to relinquish. This history is taken without the consent or knowledge of the relatives. It is passed on to the adopters at the time of the adoption.

Later on,the laws state it can be passed on to the adopted person and any descendants, or spouses, if they request it from the agency.

People who are *not* adopted do not have the right to written medical histories, under pain of laws, from their relatives.There should not be any laws that hold natural parents more responsible, especially when options exist for the information to be transferred privately, voluntarily without the interference of the state.

The gov't has no right to require this of us, and at the same time, say we are "nothing" to our children under the law.

The relationship between us and our children is a two-way thing.The state should admit this and treat us fairly, giving us and our children equal access to each other's identifying documents.

But, we know who is really being protected here, now don't we...

Sandy Young said...

The termination of parental rights, and surrender legally terminates the mother/child relationship. We are legally as if dead to one another. If our surrendered children are given a legal right to our medical information, then, as Lori says, it will not be long before anyone can get it.

I am more than willing to tell my son anything he wishes to know about the family, medically, socially, financially, or any other way, but I do not wish, EVER again, to be forced to submit a form to the state for which I will then be legally liable. Nor do I wish to surrender control over who has access to my medical information. Once it is put into a file, I no longer have control over it. Any researcher can access it, and the adoptive parents can access it. There have been books written about mothers, articles about mothers, by adoptive parents and adoptees.

Either we have a real and tangible connection to our children or we do not. It cannot be both ways. It seems that it is only when we are of use as a resource that we have value, not as people in our own right.

Anonymous said...

Kitta here:

Robin, that was my post before Sandy's..didn't mean to leave out my name.

Mandy Lifeboats said...

"It seems that it is only when we are of use as a resource that we have value, not as people in our own right."

We were of value to those who adopt, maternity homes and adoption agencies, when we carried the commodity. As soon as the "commodity" was harvested..we were no longer of value. Now we have a value once again as a "resource" of information. Not as human beings, not as women nor as mothers. I refuse to be used as a 'resource' by anyone..adopted or non-adopted. They got their pound of flesh a long time ago...there is no more to give!

Mandy Lifeboats said...

Before I became totally enlightened on the subject of Open Records and the ramifications for natural mothers....some years ago I filled out the STATE REQUIRED MEDICAL QUESTIONAIRE so that my daughter could obtain a copy of her OBC. We had already been reunited for more than a few years, I knew her adopted name and the names of her adopted parents, yet still this was (and still is) a state mandated requirement for the adoptee to receive a copy of their OBC. State Mandated Health History...who did this serve? Surely not my daughter, we were already in reunion and I had already given her as much medical info as I could, in private conversation.
I cannot tell you all how much that action of mine now dismays me. For now, that questionaire is held by a state office, wherein any manner of person who works in that dept., a researcher, God Knows Who..can read all about me and my family. But as I said I was ignorant of the ramfications of what I was offering for the sake of my adult daughter who was surrendered when she was newborn. And now to read how many adult adoptees are screaming all over Facebook, what is owed to them by the "abandoner", the "asshat", the "asshole", (I kid you not written by an adoptee supposedly fighting for Open Records) literally makes me sick to my stomach and makes me regret any petition I have ever signed onto in the past. Sure go ahead, keep insulting and demeaning natural mothers, I am sure the legislators will really want to change the laws hearing that crap...I don't think so!

BTW...my daughter never did send in her request for her OBC..she's not interested! Thank you very much!!!!!!

Robin said...

Same here, Mandy, neither my daughter nor my son have shown any interest in obtaining their OBC's. The thing is that these documents also carry a lie. They state "father unknown." Not true! I named the father of my daughter and even gave what information I had on the animal that "sired" my son. The thing is, that if they had included the father's name, they would have had to obtain his permission for surrender, as well as ours. Also, unless you were married to the father, they considered the father an unknown entitity.

Anonymous said...

kitta here:

"Sure go ahead, keep insulting and demeaning natural mothers, I am sure the legislators will really want to change the laws hearing that crap...I don't think so!"

Mandy, you are correct..lawmakers do see those comments about natural mothers...and they are not favorably impressed. Lawmakers have natural mothers in their own families, and some lawmakers *are* natural mothers themselves.

Quite a few lawmakers are on facebook and other networks. They see the ugliness.

BD said...

A couple things:

(1) US Grant said the best way to get rid of a bad law is to enforce it. I think that needs to be done, sort of in an obverse way, with these mandated medical forms. Somebody needs to sue the state. We've always thought this was illegal; and it's time to prove it.

(2) Here's how all this started. Ater we won M58 in Oregon, the legislature decided to monkey with the will of the people. What they really wanted to do was gut the measure. It took a lot of work, but Helen Hill and a leggie came up with the cpf. It was voluntary and had no affect on access. Nobody was happy about it, but it was the only workable option. Ir big fear as that the voluntary cpf would end up a veto.

Much to everyone's surprise, parents loved it The cpf let them write personal notes to adoptees. Of course, none of this was mandated and it had no affect on access.

At the same time this was going on, we had the Alabama bill going. The cpf was used as a bargaining chip (again) like age coud be (21 instead of 18) It was not part of the original bill and was never supposed to be. David and Sandra pulled it out at the last minute and the bill passed.

Pretty soon cpfs started showing up in all the bills, not as a bargaining chip, but up front.

Then it started to get dark.

Every bill now offers a cpf, which in many cases is actually a veto with mandated medical forms. WTF? I don't know if these "activists" and their buddies in the legislature are plain stupid or just disingenious. (sp)

In South Dakota it was written out of the Senate bill a the request of VS who thought it was too much trouble for their small staff to handle. hat's a point that needs focused on in the future.

Robin said...

I would like to find a high-powered attorney that would take on the industry. It only takes a few willing to represent hundreds for a class action suit, but most lawyers see adoption as a goose that lays the golden egg. It's always good for billable hours.

The fact that is has to be done on the state level and we are all scattered across the country gives us logistical problems. This issue is in direct conflict with constitutional rights and SHOULD be a slam dunk. But we all know the difference between what should be and what is.

BD said...

I think it if could be ruled unconstitutional in a federal court district it would tend to scare off other states. And certainly in that district's jurisdiction. I'll ask Erik what he thinks about this.

BD said...

Sandy, where did you find the MO form. I'm sort of out of the loop with MO. I hate the state to start with (except for Kansas City) and I've been really lost with what's going on there.

I have a friend in Cal who got all of his adoption files rather clandestinely, including those of his mother. There's well over 100 pages on her, including a "psycho-sexual" history. I've seen it. Way too much information! And who knows what its about. He was born in the 1950s so there's a lot of cultural and sexist bias amongst other crap. She's dead and he has no idea what is true and what isn't, though she had had some documented mental problems. Anyway, he was quite shocked by the detail of the records.

These mandated forms, especially the MO form, is a great weapon in our fight for clean bills. This is just about state intrusion and control and part of the overall snoop culture of the government. (In IL there was a bill, don't know if it passed, that required all children in the public schools to undergo psychological testing and then receive appropriate "treatment.") Stuff like these medical forms go much deeper than adoption. I think most people are really getting sick of this. They scream about "birthmother privacy but then demand that the same women subject their private informatino to the government. What a freaking joke.

Robin said...

BD, thank you for your comment. I agree. It is giving something we never asked for with one hand, and trying to take away much more with the other. If Sandy doesn't see this, I will get the info for you.

Sandy Young said...

BD-
http://www.senate.mo.gov/10info/BTS_Web/Bill.aspx?SessionType=R&BillID=3157495
That is the MO bill site. There are links to the full bill and the summary.

I am from IL originally, and my sister is a mental health practitioner there. That bill, which originated with GWB (who had already passed it in TX before he could wreak his havoc on the entire world) passed with barely a whimper. No one, least of all the MHPs, even knew it existed. I had to tell my sister about it, and she didn't believe me till she looked it up and then was horrified. The thing that scared me the most about it was that for the first time in my life, I agreed with Phyllis Schlafly!

BD, you are absolutely correct. To offer to protect mother's privacy while expecting us to violate it ourselves is not only wrong, it is schizophrenic! Rather like much of adoption as it is practived today in the United States....

Anonymous said...

Kitta here:

adoptive parents also want the medical history. They want to know what they can find out ahead of time so they can refuse a child.

The Louise Wise lawsuit was based on "failure to disclose" information that a mother had mental illness, and that her child had been born while she was hospitalized.

The paps said they would not adopt a child of such a background. The agency hid the background, and the paps adopted the boy who also developed mental illness.

years later, the adopters sued and the records revealed the mental illness.

The boy, sadly, referred to himself as a 'lemon" and committed suicide.

Adoption sure didn't work for him.

Now the agencies want to pass the 'product liability" onto the natural parents.

Of course, there are huge difficulties with that..such as HIPAA privacy, and the fact that no one can guarantee the health of anyone.

We are not "selling a product" with a guarantee. We cannot guarantee anyone's health, nor should we have to. We cannot guarantee our own.

what a 'sick" business...pun intended..

Marley said...

Thanks, Sandy. I'm discombobulated over Missoui I'd much rather work on my Haiti stuff at the moment, As soon as I see or hear the word Missouri I glaze over.I imagine I read that at some point, but the glaze set in.