Mr. Rody O'Brien:

I thank the Senator for the question and for bringing in the IO’T case, with which most of us are familiar. This was a Supreme Court case from over 23 years ago and I am quoting from that case, just in case there is any offence at the terminology used. It found that the identity of one “natural mother” was an unenumerated right under the Constitution following on from the natural and special relationship between a mother and child.

As we are all well aware now, the Chief Justice stated that the exercise of that right might conflict with the mother's constitutional right to privacy, which is exactly the point Senator Seery Kearney raised in her last question. It is important to knit it all together and bring it in. In the Supreme Court case, Chief Justice Hamilton said that the mother did not have an absolute constitutional right to her anonymity, as we discussed earlier. The anonymity at the time she placed her child for adoption is not guaranteed. There are conflicting constitutional rights. The court heavily criticised the Legislature and in the IOT case Mr. Justice Keane, who went on to become Chief Justice, stated rather robustly that the matter was one that should be regulated by the Legislature. Twenty three years later, we are here discussing it. Mr. Justice Keane said that the fact that the Oireachtas had failed to regulate by legislation did not justify the court in undertaking such a task for which it lacks not merely the expert guidance available to the legislative arm but also, and more crucially, the domestic mandate. It is our contention that the need for a balancing of rights is the same as in the IO'T case. Previous speakers have alluded to this as well.

The issue of birth mothers' privacy appears to be taking prominence yet again with this information session. The information can be vital to adoptees when seeking their information. The Bill is titled the Birth Information and Tracing Bill. It has nothing to do with mothers' privacy as a paramount issue, and while that is important the priority at this stage has to be on the adoptee getting his or her information. The information regarding privacy can be easily set out when the information is being released. Adoptees have been discriminated against for far too long with regard to accessing information.

I speak with two hats here. I am the husband of an adoptee and I have interacted with Tulsa and the Adoption Authority of Ireland for many years. I can see this from the legal perspective too and from the point of view expressed by Senator Seery Kearney, that is, the balancing of constitutional rights, but there has to be a point where the constitutional rights of the adoptees is given preference or a higher standing. That is not in this Bill. One can still balance the rights without again favouring or having a veto. There is a sense of the birth mothers or parents being almost permitted to restrict the information being given by the adoptees with regard to no contact and, therefore, information sessions. As pointed out by other speakers, this is very problematic. It is an element of discrimination which is offensive and it perpetuates the discrimination that has gone on for far too long with regard to the adoptees getting their information. The Bill is welcome and the intentions of the Minister, Deputy O'Gorman, are honourable and he does want to try to find a solution. We do not see the legislation as a major shift. We see it as still an obstacle regarding birth mothers' privacy and the Bill reflecting some preference or hierarchy of rights whereby the adoptees can have the information as long as they meet the requirement of a birth mother not wanting any contact. If the birth mother does not want any contact, there are plenty of laws in place to protect her privacy but which do not restrict the exercise of the constitutional rights of adoptees to information. The Bill is too restrictive.