The Oireachtas has failed to avail of the many opportunities to deal with the rights of informally adopted children to know their parentage, and the rights of those parents to privacy, a Supreme Court judge said yesterday.
If legislation existed, it would presumably afford a pivotal role to the Adoption Board regarding the process by which informally adopted children could contact their natural mothers, Mr Justice Keane said.
The board should be the agency of first resort, not the courts.
In a judgment finding that two women who had been informally adopted did not have absolute rights, constitutional or legal, to know their natural mothers' identity, the judge said his finding did not mean such a legal right should not exist.
The judge also found the women's natural mothers had no absolute rights to have their anonymity preserved.
He said the case raised difficult and sensitive issues of human relationships and complex questions of constitutional and statutory law.
One woman was born in 1941; the other in 1951. Legal adoption was not introduced in Ireland until 1952, so both were informally adopted. Both had made inquiries of the Rotunda Aid Girls Society and Father Gerard Doyle CC about the identities of their natural mothers.
The priest could not find one mother, while in the second case the mother said she was unable to cope with the situation and asked the priest not to contact her again.
Both women initiated legal proceedings.
The case first came before Mr Justice Esmonde Smyth, the new President of the Circuit Court, who had asked the Supreme Court for its opinion on 12 questions regarding the matter.
Among the issues Mr Justice Smyth raised were whether the Rotunda Society should be required to disclose the mothers' identities without their consent.
Five Supreme Court judges heard the matter and judgment was delivered yesterday.
The Chief Justice, Mr Justice Hamilton, said the Circuit Court judge before deciding would have to evolve and adopt a procedure whereby he could hear the natural mothers without disclosing their identities to their natural children.
But pending that decision, the society was obliged to disclose to Mr Justice Smyth the names and addresses of the natural mothers.
Mr Justice Keane said legislation, if it existed, would presumably afford a pivotal role in the process by which persons informally adopted could establish contact with their natural parents through An Bord Uchtala, the Adoption Board.
This should be the agency of first resort, the judge said. Such legislation would set out in detail the circumstances in which the parent's right to privacy should yield to the child's wish to know his or her parentage.
In his decision, Mr Justice Keane said the Oireachtas had failed to avail of the many opportunities it had had to deal with the issues.
In the present case, it was argued that the right to know the identity of one's natural parents was so essential it should be recognised as such as an unenumerated right.
Mr Justice Keane said another view was also possible. In the present case the applicants were two mature adults brought up and educated by the persons who adopted them informally. They were deprived of the opportunity to be nurtured by their natural mothers. In such cases, no court could fill the void they felt in their lives.
Nor, as the women accepted, could their natural mothers, even if identified, be compelled legally to give them the familial love and companionship which children born in happier circumstances normally enjoyed with their parents throughout their lives, the judge said.
Undoubtedly, if the right in question existed, its enforcement would at least enable the women to make contact and establish such a relationship, if the natural mothers felt they could cope.
To say that a person in the position of the two women who had been denied that information, and as a consequence the opportunity of getting to know his or her parents, had in some sense failed to realise "his or her full personality and dignity as a human being" could be regarded as a grave overstatement, Mr Justice Keane said.
There had been millions of cases in this and other centuries where people had grown to adulthood without knowing their real parents.
"To say of such people that they have failed in any sense to realise their full personality and dignity as human beings is, it could be argued, to deny the unique value which should be attributed to every human being, irrespective of his or her parentage or ancestry, a value which is surely at the heart of the legal philosophy which underlies the Constitution," he said.
As there existed no identifiable and superior body of law to which judges might have recourse in a case such as the present, it followed that the existence of the right to the identity of the natural mother would depend on the opinions of individual judges in the circumstances with which they were confronted.
The relevance of that approach was that in the present case it immediately brought into the equation the right to privacy of the natural mother.
In his judgment, the Chief Justice said the right of two women to know their natural mothers' identities was neither absolute nor unqualified.
The court's obligation was to harmonise such rights and in the event of failure to so harmonise, to decide which right was superior under the circumstances.
Mr Justice Hamilton said the Circuit Court judge would have to evolve and adopt a procedure to hear the natural mothers without disclosing their identities.
In deciding which right should prevail the Circuit Court judge should consider the circumstances giving rise to the natural mother relinquishing custody of her child; the present circumstances of the natural mother and the effect of the disclosure of her identity; the respective ages of the mother and child; the child's reason for wishing to know her mother's identity; present circumstances of the child; and the view of foster parents if alive.
Mrs Justice Denham, Mr Justice Barrington and Mr Justice Barron agreed with the judgment of the Chief Justice.
