The right of children to know who they are should be inalienable

 

Ireland seriously lags behind other countries on adoptees' rights of access to birth records, write Inge Clissmann and Caoilfhionn Gallagher.

Ireland's approach to adoption law can be characterised as, at best, well-meaning but inconsistent and, at worst, an overwhelming embarrassment.

Underpinning the present law is Article 41 of the Constitution, which recognises "the family" as the fundamental unit of society, but protects only the family based on marriage.

This infuses the adoption system with an objectionable distinction between married and unmarried parents, and marital and non-marital children. Little wonder the European Court of Human Rights in 1994 condemned the Supreme Court's treatment of Joseph Keegan, an unmarried father who unsuccessfully objected to his daughter being adopted without his consent.

Equally unsurprising is the fact that the Adoption Act 1998 responded to this case in a grossly inadequate fashion, only requiring that the single father now be "consulted" (a provision which is still ignored in a third of cases).

Again, Article 41's influence is evident in the farcical requirement that a single mother must apply to adopt her own child if she marries and wishes her husband to be considered the legal father.

Article 41's influence can also be detected in the appalling manner in which adoption information is released. The first Adoption Act in 1952 was based on a "clean break" policy, the rationale being that all parties could go ahead with their lives and be saved from "the stigma of bastardy".

It was assumed that many single pregnant women would choose abortions if the State could not guarantee lifelong anonymity in the adoption process.

It is now widely accepted that this rationale was deeply flawed. Closed adoptions are psychologically and physically damaging to both parent and child. They deny the adopted person a right of access to vital medical and genealogical information, and natural parents information on their child's development.

They also rule out the possibility of contact at any point between the parties directly affected, and others, such as natural siblings or grandparents. Ireland is a signatory to a number of UN conventions which recognise the right to know one's origins, and yet we have consistently failed to introduce legislation or even coherent guidelines regarding the information release.

Both Adoption Ireland and the Natural Parents Network have experience of inconsistent, random release of information, with some agencies willing to release first names only; others, counties of origin; and yet others, more detailed information.

Horror stories exist of adopted people waiting for over five years to be reunited with natural parents, only to find that their natural parents had died during the time they spent awaiting appointments.

In some instances, natural parents were simultaneously attempting to contact their children, but encountered an informational brick wall: the State stood between two people, both wishing to be reunited, and informed each that they should leave well enough alone.

The system even fails to provide for the release of non-identifying genetic and health information. This has led in some cases to a failure to diagnose illnesses such as Crohn's disease.

Ireland seriously lags behind other countries on this issue. Scotland introduced a right of access to birth records in 1930, England and Wales in 1976, Northern Ireland in 1987 and New Zealand in 1991. The international debate has now moved on to information rights of those born through sperm and gamete donation. Ireland remains, in adoption law terms, an outdated ad-hoc-racy.

There are, of course, competing rights. Many natural parents and adopted people may not wish to be contacted and have a right to privacy. Reconciling the rights to information and privacy is difficult. It is clear that the current unregulated system fails to strike that balance, as all parties are at the whim of the individual holding the file.

The Supreme Court tackled the problem in the 1998 case of I.O'T v B. and again failed to adequately address the competing rights. The court found that the natural mother's constitutional right to privacy outweighed the child's constitutional right to identity.

However, the assumption through that judgment was that natural parents who had given a child up for adoption would not wish to be contacted by their now-adult child, and so the mother was presumed to want her identity to remain secret. Privacy is a waivable right - the approach confuses privacy with state-enforced secrecy.

The Minister for Children, Brian Lenihan, is taking another bite at this particular cherry. He recently announced a "wide-ranging consultation" on the adoption legislation, which concludes today. This process is utterly flawed. Article 41 is mentioned nowhere in the 32-page discussion document released by the Department, despite its obvious relevance.

More worryingly, a draft Bill dealing with information and contact rights has been released which yet again fails to address the competing rights involved. Mr Lenihan's presentation of this Bill as a "new" proposal is disingenuous. It is essentially a rehash of a Bill released (and widely criticised) in 2001.

The Bill superficially addresses the concerns of adopted people, giving them a right of access to personal information and the birth certificate upon reaching 18. But it is filled with statutory smoke and mirrors, and so the right is severely impaired.

Firstly, the Bill's definition of "personal" information excludes "shared" information. Secondly, there is no provision for updating non-identifying information to take account of any late-onset illness. Thirdly, the Bill distinguishes between birth certificates and other information on file which could identify a third party; there is an absolute bar on releasing the latter.

Standard practice until recently involved writing only the single mother's name on to the birth cert. Thus, the Bill in practice protects the identity of most natural fathers. Ironically, the aim is to protect privacy, but there will now be general disclosure of the identities of all natural mothers, who were given guarantees of confidentiality, yet not the identities of most natural fathers, who tended not to be involved in the process and so were never given such guarantees of secrecy.

Further, the Bill is supposed to be based upon reciprocity, but the proposals allow the natural father to access information about his child, but the child has no corresponding right to access information about him.

We call for action by three groups. Firstly, the Department of Health and Children should scrap the current Bill and genuinely engage in consultation. Secondly, the courts should be more willing to use existing underused discretion to release information from adoption files in "the best interests of the child".

And the Government should consider amending Article 41.

Inge Clissmann SC and Caoilfhionn Gallagher are barristers, specialising in the areas of family law and privacy law respectively