New Bill will vindicate the right of adopted people to know about their origins
Right to information on identity must be balanced against a natural mother’s right to privacy
There is a moment in the much-lauded movie Philomena where the title character realises that just as she had spent many years searching for information about the son she gave up for adoption, he too had spent much time seeking out information about his birth mother.
For years, it would seem, they were searching for each other.
Watching that scene, the abiding feeling is to ask why they would be kept apart?
Yet, that is the reality that many adopted people are faced with.
Adoption in Ireland is regulated by the Adoption Act 1952 and the Adoption Act 2010, which do not provide any statutory rights to information or records. Instead, an ad-hoc system exists whereby adopted people can make requests to their adoption agency or the Adoption Authority of Ireland.
The process is slow and cumbersome with people often having to wait years to even meet with a social worker to start the process.
The general approach is that no records or identifying information is released unless the natural mother expressly consents or is deceased. The Adoption Authority of Ireland also maintains a voluntary National Adoption Contact Preference Register.
The practical reality of this approach is that it means that an adopted person is left without basic information as to their origins.
This approach is founded on the principle that Catholic adoption agencies made promises of privacy to unmarried women when their children were given up for adoption and they are unwilling to look beyond those promises. It must be asked how much weight ought properly be placed on these promises. By contrast, in England and Wales an adopted person has a legal guarantee of access to their original birth certificate upon reaching 18 years of age.
The European Court of Human Rights has recognised that the right of a child to know their origins is a vital aspect of their personal development and is protected by Article 8 of the Convention.
A person’s right to know the identity of their natural mother has been recognised as a constitutional right by the Supreme Court in the decision of IOT v. B.
Certain comments by Chief Justice Liam Hamilton in that case have been interpreted as meaning that children who are lawfully adopted have no constitutional right to information about the identity of their natural mother.
Such an approach can be seen as constitutionally inconsistent and out of sync with both the ECHR and other jurisdictions.
The issue is not just that of an adopted person’s right to their identity. That right must be balanced against a natural mother’s right to privacy, a fact recognised in IOT v. B.
In that case, the Supreme Court found that neither right was absolute and instead, each must be balanced against the other taking particular account of “the effect on the respective parties in the event of the vindication of one right rather than of the other”.
As was pointed out by Mr Justice Nial Fennelly in Rotunda Hospital v. the Information Commissioner, how the balance between disclosure and privacy is to be achieved is a question of policy and is something for the Oireachtas to determine.
The recognition of a right to privacy for the natural mother should not act as an automatic veto on the right of an adopted person to information.
In the IOT case, when considering the rights of those adopted informally, the Supreme Court appears to have envisaged some scenarios whereby that right to privacy can be superseded by a person’s right to information about the identity of their natural mother.
There should be no reason why the same approach cannot be used when dealing with formal adoptions.
The forthcoming Adoption (Tracing and Information) Bill provides an opportunity to address these issues.
In passing this legislation, the Oireachtas will have an opportunity to properly vindicate the rights of adopted persons to information as to their origins, while also creating a system whereby a birth parent can give their views on disclosure.
In considering the options available, a Canadian example from Ontario is instructive.
Since 2008, adopted people over the age of 18 have been given access to their original birth certificate and adoption orders.
Similarly, birth parents are allowed access to information from their child’s records. Importantly, the legislation applies to those who were adopted before its enactment.
In order to balance the rights of the parties involved the Act provides that either party to an adoption registered prior to September 1st, 2008, can apply for a “disclosure veto”. Parties can also place what is known as a “no contact notice” on their file, allowing an identity to be released but subject to a legally enforceable guarantee that no contact will be made.
The compromise developed in Ontario shows that workable solutions that respect the rights of all parties to adoption can be found.
Our difficult history with adoption is well known.
The introduction of this legislation provides an opportunity to heal some of the wounds of the past and to give to adopted people that which most of us take for granted – the right to know who you are.
Aoife Carroll is a barrister